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April 9, 2021

Latest American Journal of Bioethics issue takes hard look at "War on Drugs"

Download (17)I am pleased to have discovered that new issue of the American Journal of Bioethics has a lead article and a host of responsive commentaries on the modern state of debate over the war on drugs.  Here are links to all the great looking content:

Ending the War on Drugs Is an Essential Step Toward Racial Justice by Jeffrey Miron & Erin Partin

Racial Justice Requires Ending the War on Drugs by Brian D. Earp, Jonathan Lewis, Carl L. Hart & with Bioethicists and Allied Professionals for Drug Policy Reform

Ending the War on People with Substance Use Disorders in Health Care by Kelly K. Dineen & Elizabeth Pendo

Legalization of Drugs and Human Flourishing by Marianne Rochette, Esthelle Ewusi Boisvert & Eric Racine

Ending the War on Drugs: Public Attitudes and Incremental Change by Joseph T. F. Roberts

Some Contributions on How to Formulate Drug Policies and Provide Evidence-Based Regulation by S. Rolles, D. J. Nutt & A. K. Schlag

Ending the War on Drugs Need Not, and Should Not, Involve Legalizing Supply by a For-Profit Industry by Jonathan P. Caulkins & Peter Reuter

Racial Justice and Economic Efficiency Both Require Ending the War on Drugs by Pierre-André Chiappori & Kristina Orfali

Ending the War on Drugs Requires Decriminalization. Does It Also Require Legalization? by Travis N. Rieder

Beyond Decriminalization: Ending the War on Drugs Requires Recasting Police Discretion through the Lens of a Public Health Ethic by Brandon del Pozo, Leo Beletsky, Jeremiah Goulka & John Kleinig

Drug Legalization is Not a Masterstroke for Addressing Racial Inequality by Wayne Hall & Adrian Carter

The Importance of Rights to the Argument for the Decriminalization of Drugs by Kyle G. Fritz

The “War on Drugs” Affects Children Too: Racial Inequities in Pediatric Populations by Emily W. Kemper, Emily Davis, Anthony L. Bui, Austin DeChalus, Melissa Martos, Jessica E. McDade, Tracy L. Seimears & Aleksandra E. Olszewski

“It’s a War on People …” by Jarrett Zigon

“Second Chance” Mechanisms as a First Step to Ending the War on Drugs by Colleen M. Berryessa

April 9, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading | Permalink | Comments (0)

Might new "Commission on the Supreme Court" perhaps consider recommending creating a sentencing supreme court?

The question in the title of this post is my sentencing-addled reaction to this news today from the White House: "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States."

President Biden will today issue an executive order forming the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts on the Court and the Court reform debate. In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science.

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

To ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining. The Executive Order directs that the Commission complete its report within 180 days of its first public meeting. This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.

Long-time readers know I spend a good bit of time in this space complaining about the fact that SCOTUS does not take up enough sentencing issues (see one recent example here).  Though I seriously doubt that this new Commission will focus on the need I see for a supreme court that takes more sentencing cases, I am always serious in my view that there are many, many important sentencing issues that need more attention.

April 9, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

North Carolina Gov creates "Juvenile Sentence Review Board" to make clemency recommendations

This local story out of North Carolina reports on the creation of an interesting new sentencing review structure created by the state's chief executive.  The full headline of the piece provides the essentials: "Gov. Cooper announces formation of North Carolina juvenile sentence review board: The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate."  Here are more details from the article:

Governor Roy Cooper announced Thursday the formation of the North Carolina Juvenile Sentence Review Board.  The four-person advisory board, established by Executive Order 208, will review certain sentences imposed in North Carolina on individuals who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate.

“Developments in science continue to show fundamental differences between juvenile and adult minds,” said Governor Cooper. “For those who have taken significant steps to reform and rehabilitate themselves, this process can provide a meaningful opportunity for release and a life outside of prison.”

Prior to recommending clemency, commutation, or other action to the Governor, members of the Review Board will conduct a thorough and individualized review based on criteria outlined in the Executive Order, including rehabilitation and maturity demonstrated by the individual. This review will be available to qualifying individuals who have served at least 20 years of their sentence, or at least 15 years in certain instances of consecutive or "stacked" sentences.

In 2017, Governor Cooper signed Senate Bill 445 into law, reducing the wait time for criminal record expungement for first-time, non-violent offenders. Following the passage of Raise the Age legislation, the Governor also signed a proclamation recognizing the expansion of juvenile jurisdiction in North Carolina.

The North Carolina Juvenile Sentence Review Board is a recommendation of the Governor’s Task Force for Racial Equity in Criminal Justice which found that the group of people included in this Executive Order are disproportionately Black. The full report of the Task Force is available here.

The Governor appointed the following individuals to the North Carolina Juvenile Sentence Review Board: Marcia Morey of Durham as Chair. Morey is the Representative for House District 30.... Henry McKinley “Mickey” Michaux Jr. of Durham is a civil rights activist and former member of the North Carolina General Assembly.... Thomas G. Walker of Charlotte is a Partner at Alston & Bird and former U.S. Attorney for the Eastern District of North Carolina.... Allyson K. Duncan of Raleigh is a former judge on the United States Court of Appeals for the Fourth Circuit and the North Carolina Court of Appeals....

The full text of Executive Order 208 establishing the "Juvenile Sentence Review Board" is available at this link.

I noticed a thoughtful person on Twitter react to this news by wisely wondering why Prez Joe Biden has not yet created something like this (ideally for all offenders).  After all, as I have noted in prior posts, the Biden-Sanders Unity Task Force expressly talked about "establish[ing] an independent clemency board, composed and staffed by people with diverse backgrounds [and expanding] Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences."  The current White House has recently called for all persons to help "ensure that America is a land of second chances and opportunity for all people," but we are still awaiting Prez Biden to go from talking the talk to walking the walk.

A few of many prior related posts on federal clemency reforms:

April 9, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

April 8, 2021

Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority

When it rains it pours, at least wih respect to compasionate release rulings these days.  In this last post, I called a Fifth CIrcuit decision handed down yesterday the latest such ruling.  But, thanks to people on Twitter smarter than me, I learned that the Ninth Circuit issues a ruling on this topic today in US v. Aruda, No. 20-10245 (9th Cir. April 8, 2021) (available here). Here is the start and a key paragrph of the ruling:

Patricia Aruda appeals from the district court’s order denying her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).  We hold that the current version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13 is not an “applicable policy statement[] issued by the Sentencing Commission” for motions filed by a defendant under the recently amended § 3582(c)(1)(A).  Because the district court relied on U.S.S.G. § 1B1.13, we vacate and remand so that the district court can reassess Aruda’s motion for compassionate release under the correct legal standard....

We agree with the persuasive decisions of our sister circuits and also hold that the current version of U.S.S.G. § 1B1.13 is not an “applicable policy statement[]” for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant.  The Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding. See Gunn, 980 F.3d at 1180.

A few of many, many prior related posts:

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

Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act

Last week brought a number of notable Tenth Circuit opinions regarding compassionate release authority after the FIRST STEP Act, as discussed in posts here and here.  A helpful reader made sure I did not miss the latest circuit ruling of note in this arena, this one coming from the Fifth Circuit in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021) (available here).  Here is the start and some key parts of the ruling (with some cites removed):

The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand....

The district court nevertheless thought itself bound by the old preFSA policy statement that appears in § 1B1.13.  That was error for three reasons.

First, the text of § 1B1.13 says it only applies to “motion[s] of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates.  So the policy statement continues to govern where it says it governs — on the “motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13.  But it does not govern here — on the newly authorized motion of a prisoner.

Second, the text of the commentary confirms the limited applicability of § 1B1.13. Application note 4 of the commentary makes clear that a “reduction under this policy statement may be granted only upon a motion by the Director of the Bureau of Prisons.”  U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added).  That note expressly limits the policy statement’s applicability to motions filed by the BOP.

Third, the district court cannot rely on pieces of text in an otherwise inapplicable policy statement.  See United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (refusing to “do some quick judicial surgery on § 1B1.13 . . . [and] assume that what remains . . . applies to defendant-filed as well as BOP filed motions”).  It’s true that application note 1 defines “extraordinary and  compelling reasons” by articulating four categories of reasons that could warrant a sentence reduction. But this “text may not be divorced from context.” United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018)....  And the context of the policy statement shows that it applies only to motions filed by the BOP.  Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

For these reasons, we conclude that neither the policy statement nor the commentary to it binds a district court addressing a prisoner’s own motion under § 3582.  The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue.  See United States v. McGee, --- F.3d ---, 2021 WL 1168980, at *12 (10th Cir. Mar. 29, 2021); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 284; Jones, 980 F.3d at 1111; Brooker, 976 F.3d at 234.

A few of many, many prior related posts:

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

Spotlighting progressive prosecutor challenges and politics circa spring 2021

Politico has this extended and timely new article headlined "Left-wing prosecutors hit fierce resistance: An uptick in murders across the country is testing their resolve — and their electability."  Here are excerpts:

Larry Krasner’s election in 2017 was a triumph for progressives nationwide: The man who had sued cops 75 times, represented Black Lives Matter, promised to end cash bail — and was widely seen as the most liberal district attorney candidate in the country — won.

Four years later, Philadelphia’s top prosecutor — and one of the leading figures of the country’s criminal justice reform movement — is under siege.  Homicides are skyrocketing in the city, and local officials are grumbling. A former assistant district attorney backed by the local police union is challenging Krasner in the May primary.  And in recent weeks, the Philadelphia Democratic Party broke with years of tradition and declined to endorse the incumbent.

The primary battle is a test of whether the left can maintain its successful campaign electing progressive district attorneys amid an uptick in murders in cities around the country. If Krasner wins, it could signal the arrival of a new era, one in which the public doesn’t recoil from liberal criminal justice policy — even when crime statistics go up.  If he fails, it would be a jolt for politically beleaguered police unions, and a sudden halt to what has been a steady shift leftward in urban DA races.

“His reelection means everything,” said Shaun King, a civil rights advocate and former surrogate for Bernie Sanders’ presidential campaign.  “We always knew that Larry, a lifelong civil rights attorney, would come in and change the system from the inside out, and that doing so would make him a major target.”

Krasner isn’t the only big-city progressive prosecutor meeting fierce resistance.  In California, both San Francisco District Attorney Chesa Boudin and Los Angeles District Attorney George Gascón are facing recall efforts.  Opponents of the left-wing DAs have accused them of letting criminals loose on the streets and turning a blind eye to victims — all criticisms lobbed at Krasner, too.

Krasner has framed his reelection campaign as a choice between the future and the past, “a past that echoes with names like [Frank] Rizzo,” Philly’s former tough-on-crime, racially polarizing mayor, as he put it at a recent candidates forum.  He says that he delivered on his campaign promises by lowering the jail population, exonerating the innocent and reducing the amount of time people are on probation and parole.

He has taken a tack against his Democratic challenger — ex-homicide prosecutor Carlos Vega, who was among the group of employees he fired when he became DA — that once might have been unthinkable.  Krasner is using the local police union as a foil, and reminding voters that Vega is endorsed by the local chapter of the Fraternal Order of Police, whose national union endorsed former President Donald Trump.

As for the spike in homicides — they are up 29 percent compared with this time in 2020, which was the most violent year in three decades — Krasner blames larger societal forces.  “What has happened, and essentially every criminologist agrees on this, is that the pandemic, closing of society and closing of so many different aspects of what protects and surrounds especially young men have disappeared,” Krasner said in an interview.  “So in every single city, you have the elimination of high schoolers being in classrooms at least for periods of time, summer camp, summer job programs, open swimming pools, open recreation centers, organized sports in school, organized sports out of school and after-school programs."...

Murders rose last year in cities around the country, both big and small, suggesting that local explanations alone cannot explain the phenomenon.  Asked whether it’s fair to blame Krasner amid a national trend, Vega said that “the issue is what is happening to our community, our city — he cannot and I cannot address all the ills happening across the nation.”

But Krasner’s approach of declining to accept any blame whatsoever has rubbed some voters and party officials the wrong way.  The politically influential Democratic ward leaders who declined to endorse Krasner were frustrated that “there’s an epidemic of gun violence here, everybody’s been touched by this, and Krasner takes no responsibility,” said a person familiar with their meeting with the district attorney....

Krasner has expressed confidence in his prospects in the May 18 primary, pointing to the reelection of other liberal prosecutors around the country such as Cook County State's Attorney Kim Foxx and Baltimore State's Attorney Marilyn Mosby.  He doesn’t fear a 1990s revival of the tough-on-crime ethos due to the recent gun violence.  “I do not believe that people who have had the wisdom to elect progressive prosecutors all over the country, and increasingly, all of a sudden are going to get the stupids,” said Krasner, “and decide that a phenomenon that is affecting essentially every major city — and is affecting traditional prosecutors’ cities and Republican cities just as much as progressive prosecutors’ cities and Democratic cities — I do not believe all of a sudden they're going to get that stupid and go for this kind of dumb scapegoating.”

April 8, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"What is Life?" podcast gives voice to people serving LWOP in Pennsylvania

2000WhatisLifeDarkI had seen last month this enticing podcast preview:

What is Life?

Through phone calls with men and women serving life without parole in Pennsylvania, What is Life takes you inside the prison walls to answer the question -- what is life to someone sentenced to die behind bars.

Now I see the first three episodes of this podcast are available at this link.  Here is how they are previewed:

What is Life?  Charles Diggs

In this episode you'll hear from Charles Diggs, a man who has spent nearly 50 years in prison serving life without the possibility of parole.  Charles discusses the effect the COVID-19 pandemic, which he described as the worst experience of imprisonment, has had on incarcerated people.

What is Life?  Heather Lavelle

In this episode of What is Life? you'll hear from Heather Lavelle, a woman who after more than 20 years of substance use and mental health issues killed her ex-boyfriend.  In Heather's poem, "Under the Glass," she discusses living a life feeling separated from others, reckoning with harms she's caused and trying to find redemption in prison.

What is Life?  David Mandeville

In this episode of What is Life? you'll hear from David Mandeville as he discusses the realities of living in prison knowing he, and many others, will die behind bars.

All of the episodes include this program note: "This podcast is sponsored by FAMM, a national nonpartisan advocacy organization that promotes fair and effective criminal justice policies that safeguard taxpayer dollars and keep our communities safe.  Founded in 1991, FAMM is helping transform America’s criminal justice system by uniting the voices of impacted families and individuals and elevating criminal justice issues all across the country."

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

April 7, 2021

"When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime"

The title of this post is the title of this new paper authored by Ira Mark Ellman now available via SSRN. Here is its abstract:

In Romer v. Evans the Court drew a constitutional distinction between civil laws enacted for a broad public purpose that justifies "the incidental disadvantages they impose on certain persons," and laws that have "the peculiar property of imposing a broad and undifferentiated disability on a single named group".  Laws of the second kind "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  The difficulty lies in deciding when the inference properly becomes a conclusion that the law violates the Equal Protection Clause.  The more sweeping and unusual the burdens imposed on the targeted group, the more difficult it may be to discern a common policy explaining them other than the forbidden purpose of harming their targets.  At some point the animus inference may be strong enough to require scrutiny of the laws' purported rationale, including whether it has any actual basis in fact.

An astonishingly broad array of burdens are imposed today on anyone ever convicted of almost any sexual offense of any kind or seriousness, including but extending far beyond their simple inclusion in publicized websites listing "sex offenders."  No similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier.  This "registry regime" raises as strong an inference of animus as there was in any of the four cases in which the Court sustained such claims, and the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive.  Nor does the fact that many sexual offenses are never reported to law enforcement authorities cast any doubt on the validity of those studies or on the legal or policy analyses relying on them.  Much of the registry regime must therefore fall under an Anti-Animus principle.

April 7, 2021 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Noticing federal prison flow from "Federal Justice Statistics, 2017-2018"

I often blog about the "stock" of federal prisoners (examples here and here and here), aided by the weekly reporting on the number of federal inmates by the Federal Bureau of Prisons at this webpage.  But, without information about the "flow" of persons in and out of prison, any snapshot of the prison population at a particular moment only tells part of the data story of modern mass incarceration.  Helpfully, the Bureau of Justice Statistics has released this new lengthy report, titled ""Federal Justice Statistics, 2017-2018," which includes data on the flow of federal prisoners over one year.

I recommend this new BJS report for all federal criminal justice fans, as it includes all sorts of data about about all stages of criminal case processing.  And I found this passage especially interesting when thinking about federal prison populations:

In FY 2018, a total of 59,248 sentenced offenders were admitted to the BOP, of whom 47,620 had been committed by a U.S. district court (table 8).  The remaining 11,628 offenders were returning to federal prison for violating conditions of their probation, parole, or supervised release or were admitted for a reason other than a U.S. district court commitment. Most prisoners admitted to the BOP had been convicted of a drug offense (36%), and the majority of them received a prison sentence of more than one year (74%).

A total of 64,397 prisoners were released from federal prison in FY 2018, of whom 52,404 were released for the first time since their commitment by a U.S. district court.  From the start to the end of FY 2018, the number of federal prisoners declined by 5,419.  This included decreases in immigration offenders (down 3,180) and drug offenders (down 2,323) and increases in public-order offenders (up 953) and weapons offenders (up 477).

Table 8 in this document reported a total federal prisoner population of 167,034 at the state of Fiscal Year 2018, which means that significantly more than a third of the entire federal prison population "turned over" in just one year. (My sense is that the "flow" numbers are comparable in state prison systems, and that they are especially dramatic for jails where most persons a serving terms less than a year long.)

April 7, 2021 in Data on sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

April 6, 2021

"Low-Ball Rural Defense"

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

Focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole has increased on both the scholarship and policymaking fronts.  Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors.  As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender — especially those in rural America, with about 90% of the country’s landmass and more than 20% of its population — gets lost in the shuffle.  T

his Article centers these public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding.  It opens with a comparison of two comparable criminal cases with very different results of the accused to spotlight what happens when public defense is privatized.  The Article then discusses the specific perverse incentives that rural public defenders face and burden under when their services are procured by way of competitive bid — not with the intention of arguing that such services should never be bid out, but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so.  The Article then introduces, for the first time, the concept of “noble cause corruption,” previously used to explain and to some extent excuse police malfeasance, in a new context to explain the consequences of some of the choices rural public defenders make while burdening under contract systems, presumably for the good of their clients.

April 6, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Just a week's worth of good reads from The Appeal

Just about every week, The Appeal has too much great new criminal justice content for me to keep up with. So, as I often like to do, I will try to make up for limited time with a round-up of links that here merely highlight some of this notable recent content:

By Elizabeth Weill-Greenberg, "Unless Biden Acts, Thousands Could Go Back To Federal Prison: A Department Of Justice Memo From January Could Have A Devastating Effect On Many Federal Prisoners Who Have Been Released On Home Confinement."

By Veronica Riccobene, "Cuomo Concedes On Two Big Wins For Criminal Justice Reform: The Embattled New York Governor, Who Advocates Describe As A Longtime Impediment To Reform, Signed Bills To Legalize Marijuana And Considerably Restrict Solitary Confinement In The State."

By Molly Greene, "States Should Abolish “Felony Murder” Laws: A Person Who Didn’t Commit Murder Shouldn’t Be Charged With It—But Felony Murder Laws Allow Prosecutors To Do Just That. States Should Repeal These Draconian And Unjust Laws."

By Elizabeth Weill-Greenberg, "D.A.s Are Asking Biden To End The Death Penalty. But Some Are Still Wielding It Themselves: Prosecutors Who Have Championed Criminal Justice Reforms Are Still Seeking Death Sentences, Opposing Appeals, And, In Some Cases, Have Even Petitioned For Execution Dates."

April 6, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

"A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment"

The title of this post is the title of this notable new short report from the Collateral Consequences Resource Center.  This blog posting at CCRC, titled "Second Chance Month: A Federal Reintegration Agenda" provides some background on the report.  Here is the report's introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources has been perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: Authorize federal courts to expunge certain records, grant certificates of relief, and increase use to deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; and, provide relief from firearms dispossession.
  • Federal public benefits: End record-related restrictions in financial assistance to small businesses, SNAP and TANF benefits, and student aid.
  • Employment & licensing: Establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: Allow voting in federal elections regardless of a person's criminal record unless currently incarcerated for a felony conviction.

April 6, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Recommendations for needed reform to Massachusetts clemency process

Via this new Boston Globe editorial, fully headlined "State parole board, clemency process need reform: The Massachusetts Bar Association makes the case for more ‘justice’ at the end of the criminal justice pipeline," I saw that the Bay State's bar association issues an interesting new report on clemency last month. Here are some of the basics via the start of the editorial:

A good deal of attention has focused this past year on policing — the input part of the criminal justice process — but what about the other end of that pipeline? What about those already caught up in the system but looking for clemency as a way out of a long and often unjust sentence?

For them, in Massachusetts, the only exit runs through a seven-member board, a body dominated by those with law enforcement backgrounds that in the past six years has held only one commutation hearing — last October — while some 240 petitions for clemency have been pending. The state Parole Board has basically served as a traffic cop, stalling those petitions, which means that, with rare exception, they never reach the governor’s desk.

Now the Massachusetts Bar Association is putting its considerable heft behind efforts to restructure and broaden the board (also known as the Advisory Board of Pardons when it’s dealing directly with a commutation or pardon), force it to hold to reasonable time standards for acting on petitions, and modernize its guidelines to ensure a “fair, racially unbiased” process.

“In the Commonwealth of Massachusetts, the power of clemency is an under-utilized tool that should be applied on a case-by-case basis to address systemic failures, such as the racial injustice that permeates every step of our criminal legal system,” the MBA’s Clemency Task Force wrote in its recent report to the MBA House of Delegates. That body recently approved a number of resolutions aimed at guiding those reforms.

The full 16-page report of the MBA Clemency Task Force is available at this link.

April 6, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

April 5, 2021

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2020"

The US Sentencing Commission, despite the persistent lack of a quorum, can still churn out federal sentencing data and can still produce helpful reports about that data.  One such report is its annual review of federal criminal cases, which was released  today under tht title "Overview of Federal Criminal Cases, Fiscal Year 2020."  The full 27 page report is available here, and the USSC describes and summarizes the report this way on this webpage

Summary

The United States Sentencing Commission received information on 64,659 federal criminal cases in which the offender was sentenced in fiscal year 2020.  Among these cases, 64,565 involved an individual offender and 94 involved a corporation or other “organizational” offender.  The Commission also received information on 5,859 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of these cases.

Highlights

A review of cases reported to the Commission in fiscal year 2019 reveal the following:

  • The 64,565 individual original cases reported to the Commission in fiscal year 2020 represent a decrease of 11,973 (15.6%) cases from fiscal year 2019, reflecting the impact of the COVID-19 pandemic on the work of the courts.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 86.4% of all cases reported to the Commission.
  • Immigration cases were the most common federal crimes in fiscal year 2020 (41.1%)..
  • Drug possession cases continued a five-year downward trend, decreasing 22.0 percent from fiscal year 2019, while the number of drug trafficking cases reversed a slight upward trend from 2019 — falling 17.3 percent.
  • Methamphetamine offenses were the most common drug cases.  The 7,537 methamphetamine cases represented 45.7% of all drug crimes.

April 5, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

"Doing Away With Disorderly Conduct"

The title of this post is the title of this new article by Rachel Moran recently posted to SSRN.  Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve.

April 5, 2021 in Offense Characteristics, Race, Class, and Gender | Permalink | Comments (1)

SCOTUS grants cert to address circuit split over "harmlessness" in federal habeas review

The US Supreme Court's order list this morning includes one cert grant, and it is a habeas case out of the Sixth Circuit: Brown v. Davenport, No. 20-826.  Here is how Michigan's cert petition frames the issue to be considered in this case (which will likely get argued in the fall during the next SCOTUS term):

In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.”  Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test.  The question presented is:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

April 5, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

April 4, 2021

US Sentencing Commission may still lack a quorum, but now it has a podcast!

I am ever grumpy that the US Sentencing Commission has been without a quorum for well over two years (see here), while also being ever hopeful we will get new Commissioner nominees soon (see here and here).  But this past week I was ever pleased to see a notice at the US Sentencing Commission's website spotlighting "COMMISSION Chats: NEW PODCAST SERIES."  This USSC webpage explains:

Brought to you by the Office of Public Affairs, Commission Chats is a podcast series designed to inform the public of the Commission's objectives and work through interviews with senior leadership and other subject matter experts.  Listeners will hear about current projects directly from the staff bringing these projects to completion.

And here is the description of the first entry:

Commission Chats -- Episode 1 (MARCH 2021)

Episode 1: An Interview with Staff Director Ken Cohen In the pilot episode of Commission Chats, Kenneth Cohen, Staff Director of the Commission, discussed our core missions and gave some tips on how the Commission can make a new Hill staffer's life a bit easier. (Published March 30, 2021)

 

UPDATE: The USSC on Monday, April 5 posted Commission Chats -- Episode 2 (April 2021):

Episode 2: ORD Deputy Director Kristin Tennyson and the Interactive Data Analyzer (IDA) Go behind the scenes with IDA in this Commission Chats podcast episode!  Kris Tennyson, Deputy Director of the Office of Research and Data, talks about its development, how to best utilize it, and what the future holds for IDA. (Published April 5, 2021)

April 4, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation?

13cb83a5a0a55a11a5cf72ef54937218Last week, the White House released "A Proclamation on Second Chance Month, 2021."  Here is the full substantive text:

     America’s criminal justice system must offer meaningful opportunities for redemption and rehabilitation.  After incarcerated individuals serve their time, they should have the opportunity to fully reintegrate into society.  It benefits not just those individuals but all of society, and it is the best strategy to reduce recidivism.  During Second Chance Month, we lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.

     My Administration is committed to a holistic approach to building safe and healthy communities.  This includes preventing crime and providing opportunities for all Americans.  It also requires rethinking the existing criminal justice system — whom we send to prison and for how long; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and the racial inequities that lead to the disproportionate number of incarcerated Black and Brown people. 

     We must commit to second chances from the earliest stages of our criminal justice system.  Supporting second chances means, for example, diverting individuals who have used illegal drugs to drug court programs and treatment instead of prison.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be.  It means providing quality job training and educational opportunities during incarceration to prepare individuals for the 21st century economy.  And it means reinvesting the savings from reduced incarceration into reentry programs and social services that prevent recidivism and leave us all better off.

     More than 600,000 individuals return to their communities from State and Federal prisons every year.  Transitioning back into society can be overwhelming for those who are formerly incarcerated as well as their families and communities.  Too many individuals face unfair legal and practical barriers to reentry.  The reentry process is complicated in the best of times, and is even more so with the additional difficulties presented by the COVID-19 pandemic.

     We must remove these barriers.  Every person leaving incarceration should have housing, the opportunity at a decent job, and health care.  A person’s conviction history should not unfairly exclude them from employment, occupational licenses, access to credit, public benefits, or the right to vote.  Certain criminal records should be expunged and sealed so people can overcome their past. 

     By focusing on prevention, reentry, and social support, rather than incarceration, we can ensure that America is a land of second chances and opportunity for all people.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2021 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe this day with appropriate programs, ceremonies, and activities.

I like all the sentiments in this proclamation, and I sincerely hope "all government officials" engaged in "appropriate activities" to observe Second Chance Month.  But as the title of this post is meant to highlight, Prez Biden has one particually appropriate way to " lift up" and "commit to second chances" through the granting of clemency.   He can today and tomorrow and every day, simply with his clemency pen, begin the process of "eliminating exceedingly long sentences" and ensure we are "focusing on prevention, reentry, and social support, rather than incarceration."  Morevoer, because there are currently no federal record relief laws, the only way for federal criminal records to functionally "be expunged and sealed so people can overcome their past" would be through pardon grants.

Especially during a holiday season, I do not think it too much to expect and hope that the President will seek to practice what he preaches.  Or, in this case, practice what he proclaims by getting moving on clemency.   

A few of many prior related posts:

April 4, 2021 in Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)