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May 1, 2021

Assessments and concerns regarding Biden Administration's early criminal justice efforts

This past week brought the end of the first 100 days of Joe Biden's presidency along with a big speech from Prez Biden to Congress.  In this prior post, I lamented a bit that the big speech did not devote much attention to criminal justice reform issues.  And here is a round-up of some recent articles and commentary reviewing the work of the first 100 days and urging the Biden team to lean into criminal justice issues more:

From Christina Carrega at CNN, "Biden vowed to end the death penalty. Activists are demanding action as he nears the 100-day mark"

From Morgan Chalfant at The Hill, "White House officials meet virtually with criminal justice reform advocates"

From Marc Levin and Khalil Cumberbatch at USA Today, "On racial and criminal justice, Biden has shown some promise, but little progress"  

From Billy Binion at Reason, "If Biden Is Serious About Criminal Justice Reform, He Needs To Get Serious About Qualified Immunity"

From Shaun King at Newsweek, "Joe Biden Must Fix the Racist Criminal Justice System He Helped Create"

From Erica Zunkel and James Zeigler at USA Today, "Biden administration needs to walk the walk on second chances for prisoners; The Department of Justice routinely opposes releases, doing so in clearly meritorious cases."

May 1, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

"Obstruction of Justice: Redesigning the Shortcut"

The title of this post is the title of this new paper authored by Ellen Podgor just published in the BYU Law Review and now available at this link. Here is its abstract:

When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important.  It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity.  Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment.  But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, or varying interpretations of government officials.

This Article examines obstruction of justice in the federal system, looking at it in three different contexts: as a criminal offense, as a sentencing enhancement, and as a basis for a judicial or presidential impeachment.  It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters.  It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a "short-cut" offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries.  Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution.  The actual practice, as recently seen in the differing view of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstruction conduct by President Donald Trump — outlined in the Mueller Report — highlights the inconsistency in this area of the law.  This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge or in conjunction with other shortcut offenses such as false statements and perjury.

May 1, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

April 30, 2021

Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing

As reported in this local article, headlined "Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’," the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel....

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State's Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004); Minn. Stat. § 244.10; Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant's Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

April 30, 2021 in Blakely in the States, Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Prez Biden gets timely reminder that criminal justice reform presents unique bipartisan opportunity

I complained in this post that Prez Biden did not have all that much to say about criminal justice issues in his lengthy speech to Congress this week. But I now see from a number of news reports that criminal justice reform got some brief, but especially notable, bipartisan attention after the speech.  This Washington Post piece, headlined "GOP lawmaker who voted to overturn Biden’s election win wants to help him on criminal justice reform," provides these details:

Moments after President Biden concluded his first speech to a joint session of Congress on Wednesday, he was greeted by lawmakers aiming to get in some coveted face time with the president.  Among them was Rep. Troy E. Nehls (R-Tex.), who helped barricade the entrance of the House Chamber during the insurrection Jan. 6 but still voted to overturn the election that Biden won.

But in a brief exchange Wednesday night, Nehls, wearing a Texas-flag mask, introduced himself to Biden as “a sheriff from Texas” and offered his experience policing Fort Bend County to help with the president’s efforts on criminal justice reform.  “I want to help with the criminal justice reform. I want to be a part of it. It’s needed,” he said to the president. “I don’t know how to reach out to you, but I have the experience.”

In response, Biden assured him they’d be in touch, saying, “I’ll reach out to you.”... A White House official told The Washington Post on Thursday that Biden “appreciated Rep. Nehls’s offer and their conversation.”...

During last year’s GOP primary for an open seat in Congress, Nehls painted himself as a fierce Trump advocate.  Texas Monthly reported that he stated on his campaign website how he would “stand with President Trump to defeat the socialist Democrats, build the wall, drain the swamp, and deliver on pro-economy and pro-America policies.”  After he secured the nomination, Nehls pivoted to a more moderate approach for the general election, focusing on health care and criminal justice reform.  He also removed the “Standing with Trump” section from his website as Trump’s approval among Republicans was waning, according to the Houston Chronicle.  He went on to defeat his Democratic opponent, Sri Preston Kulkarni, by seven percentage points in November....

On Wednesday night, Nehls tweeted during the speech about the president’s handling of the southern border and slammed Democrats for reportedly handing out masks in the Chamber that were made in China. But in their exchange on criminal justice reform, Nehls took on a much different tone than the one he used on Twitter.

“I don’t want to hurt your reputation,” the president said to Nehls of his offer, according to video of the moment. Before Biden went to talk to another lawmaker, Nehls made his final plea: “I can do a whole lot of good in that conversation.”

This Texas Tribune article, headlined "Freshman GOP Texas congressman made a personal pitch to Joe Biden: Let me help with criminal justice reform," provides some more details concerning the type of reforms that Rep Nehls seems eager to champion:

Biden administration staff reached out to Nehls' office on Thursday morning, according to Nehls spokesman Daniel Gribble.  Gribble added that Nehls is "optimistic about common sense reforms they can accomplish" and the congressman's focus is "recidivism reduction through inmate training programs."

"As Sheriff, Rep Nehls implemented HVAC and welding programs for non-violent inmates at the county jail," Gribble said.  "He had wild success reducing the 2 year re-arrest rate with participating inmates.  He’d like to see similar programs available in County jails across the country and is working on legislation that will make that possible."

April 30, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (11)

Great example of clemency leading to more compassion ... in the form of compassionate release thanks to FIRST STEP Act reforms

I am not sure if anyone is trying to make a comprehensive list of the wide array of factors that federal courts have referenced in granting sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) ever since the FIRST STEP Act allowed federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons.  Thankfully, district and circuit court have consistently recognized that, in the word of the Second Circuit in US v. Brooker, 976 F.3d 228 (2d Cir. 2020), the "First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release."  And, via this new Law360 article, headlined "Ex-Detroit Mayor Ally Released From Prison Years Early," I saw a new opinion with a particularly notable reason given for such a reduction.  Here  are the basics and context from the article:

A former contractor and co-defendant to ex-Detroit Mayor Kwame Kilpatrick on Thursday was granted compassionate release from prison after serving eight years of a 21-year sentence over a municipal bribery and kickback scheme, with the judge citing health problems and the fact Kilpatrick had his sentence commuted. U.S. District Judge Nancy Edmunds reduced the sentence for Bobby Ferguson, 52, to time served, noting his underlying medical conditions that place him at grave risk were he to contract COVID-19, and the fact that Kilpatrick — the much more culpable defendant in the case — in January was granted a reprieve by former President Donald Trump.

Judge Edmunds said at the time of the original sentencing there were "serious differences" between Ferguson's conduct and that of Kilpatrick — the mastermind of the pay-to-play scheme to exchange city business for bribes and kickbacks.  That Ferguson is left facing a prison term more than twice as long as Kilpatrick served constitutes an "extraordinary and compelling" reason to grant Ferguson compassionate release, she said.  "He was not the driver of the bus; that was Mr. Kilpatrick, where the power resided," Judge Edmunds said.

Michigan federal prosecutors had strongly opposed granting Ferguson compassionate release, calling Kilpatrick's commutation "wrongful" and highlighting Ferguson's earlier convictions for assault and other alleged misdeeds.  The government also disputed that Ferguson's hypertension, diminished lung capacity due to an injury and high cholesterol merited an early release.   The government further argued that Ferguson had not exhausted his administrative remedies with the Bureau of Prisons, since he had only petitioned the prison warden for compassionate release based on his health issues and not the disparity in sentence that resulted from Kilpatrick's release.

However, Judge Edmunds said she was persuaded by other court decisions in finding that so-called "issue exhaustion" is not required for compassionate release. She also noted his prior violent crimes occurred decades ago, and that Ferguson hasn't displayed any such "hotheadedness" while incarcerated.

The full 11-page ruling this case is available at this link, and here is a key passage:

Defendant now faces the prospect of a period of incarceration much longer than a more culpable co-defendant.  At the time of sentencing, the Court noted there were “serious differences” between Defendant’s conduct and that of Mr. Kilpatrick. (ECF No. 493, PgID 16285.)  More specifically, Defendant was not an elected official and had been charged with and convicted of a substantially smaller number of charges. (Id.) The Court therefore concluded that Defendant deserved a shorter sentence than Mr. Kilpatrick and ultimately sentenced Defendant to a term of imprisonment 75% as long as Mr. Kilpatrick’s sentence. That Defendant now faces a period of incarceration more than twice as long as the time Mr. Kilpatrick served is both extraordinary and compelling.  See United States v. Sapp, No. 14-cr-20520, 2020 U.S. Dist. LEXIS 16491, at *5 (E.D. Mich. Jan. 31, 2020) (defining “extraordinary as beyond what is usual, customary, regular, or common” and “a compelling reason as one so great that irreparable harm or injustice would result if the relief is not granted”) (internal quotation marks and citation omitted).

The government argues that avoiding unwarranted sentence disparities, one of the § 3553(a) factors, should not be part of this step of the analysis and that taking this into account would contravene the interest in finality of sentences.  The Sixth Circuit has held, however, consistent with all other circuit courts that have addressed this issue, that district courts have “full discretion” to define extraordinary and compelling reasons. See Jones, 980 F.3d at 1109; see also Brooker, 976 F.3d at 237 (noting that “a district court’s discretion in this area — as in all sentencing matters — is broad”). The only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone is not sufficient.  See 28 U.S.C. § 994(t).  That particular circumstances may also factor into the Court’s analysis under § 3553(a) has no bearing on whether they can be considered extraordinary and compelling.  And, here, the disparity only arose recently due to the unique circumstance of a co-defendant being granted a Presidential commutation.

While the finality of sentences is an important principle, the compassionate release provision of § 3582(c) “represents Congress’s judgment that the generic interest in finality must give way in certain individual cases and authorizes judges to implement that judgment.”  See United States v. McCoy, 981 F.3d 271, 288 (4th Cir. 2020) (internal quotation marks and citation omitted).  The Court finds this to be an appropriate case in which to do so. Not only has Defendant served a slightly longer term of imprisonment than a more culpable co-defendant, but his motion comes during an unprecedented global pandemic and Defendant has an increased vulnerability to the virus.

April 30, 2021 in Clemency and Pardons, FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"A better path forward for criminal justice: A report by the Brookings-AEI Working Group on Criminal Justice Reform"

The title of this post is the title of this lengthy new report which, as the title explains, is a product of a working group of The Brookings Institution and The American Enterprise Institute for Public Policy Research.  In addition to the full pdf, one can also access each part of this report online here, and here is are the closing sentiments authored by Rashawn Ray and Brent Orrell in the report's conclusion:

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda.  The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution.  The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system.  These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

All the individual chapter should be of interest to folks concerned about all aspects of criminal justice reform, and these chapters ought to be of particular interest to those who follow sentencing and corrections issues closely:

April 30, 2021 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

April 29, 2021

US Sentencing Commission releases FY 2021 first quarter sentencing data showing COVID's continued impact on federal sentencings (and USSC data)

A helpful colleague made sure that I did not overlook the fact that the US Sentencing Commission this week published here its latest quarterly data report which covers "Fiscal Year 2021 - 1st Quarter Preliminary Cumulative Data (October 1, 2020, through December 31, 2020)."  These new data provide another official accounting of how COVID challenges continued to dramatically reduce the number of federal sentences imposed through the end of 2020.  Specifically, as reflected in Figure 2, while the three quarters prior to COVID averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Figure 2 also shows that it is a steep decline in immigration cases that primarily accounts for the decrease in overall cases sentenced.

Also quite interesting is the big jump reported in these data of the number of below-guideline variances granted in the last two quarters (as detailed in Figures 3 and 4).  My colleague had this to say about this data: 

The overall rate of downward variances shot up recently and is staying up, while not surprisingly, the rate of within Guidelines sentences have dropped considerably.  The only apparent explanation is that judges are varying downward more frequently in light of the pandemic: COVID Variances to help lower the prison population and likelihood of infection spread.  Hopefully, if the Commission ever gets a quorum, it addresses the issue of infectious diseases and variances.  After all, 28 USC 994(g) states that “The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.”  Currently, 81 of the 193 BOP facilities are over their rated capacities making them that much more susceptible to outbreaks. 

Though I certainly want to believe more federal judges are imposing lower sentences because of COVID issues in prison, other data suggest there may be more to the story.  Specifically, in this new quarterly report, the USSC data still show that only 8.6% of offenders received a sentence of probation (in FY 2019, the last pre-COVID year, 7.7% of offenders receive probation; in FY 2018, 8.4% did).  In addition, the average sentence for drug trafficking and firearms and fraud seem largely unchanged when compared to pre-COVID years (though they have ticked down a month or two).  Still, if federal prosecutors during COVID are only moving forward with the most aggravated of cases, then having a few more more persons getting probation and many getting a few months less in prison may still reflect a real and consequential change in sentencing practices. 

In the end, though, I think the sharp increase in variances is primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.  Immigration sentences are, generally speaking, the least likely to include a variance; drug and fraud sentences are the most likely to include a variance.  Thus, when the case mix includes significantly fewer immigration cases, the overall sentenced population will have a greater percentage receiving variances.  Notably, this case mix story also surely explains why Figure 5 reports that the "Average Guideline Minimum" and the "Average Sentence" have been higher the last two quarters than any time in the last five years.  Immigration cases, generally speaking, have lower guideline minimums and lower average sentences; take a lot of these cases out of the overall mix, and the average for all the other cases will increase.

Ah, the many joys of complicated sentencing data!

April 29, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

New detailed polling reveals broad support for broad use of clemency power to commute sentences

Poll_03-individuals-who-served-more-600x413This interesting new report at The Lab - The Appeal details the results of interesting new polling showing broad support for clemency on behalf of a wide array of different types of persons in prison. The report is authored by Molly Greene and Sean McElwee under the headline "Poll: Use Clemency Power to Fight Mass Incarceration." I recommend clicking through to see all the details, but here is part of the narrative:

New national polling from Data for Progress and The Lab, a policy vertical of The Appeal, shows that voters support using executive clemency as a tool to reverse decades of over-incarceration, and commuting prison sentences for broad categories of people who can be safely returned to their communities.

Even after decades of excessively long and discriminatory prison sentences in the United States, and amid growing consensus that we need to dramatically reduce prison populations, executive clemency remains a largely overlooked and underused path toward reversing the punitive excesses of mass incarceration. Grants of clemency need not be rare exceptions....

While momentum for sentencing reform has grown at both the state and federal level, American prisons remain filled with people serving lengthy, decades-long sentences, including those imposed in the 1990s and the early 2000s, when the punitive zeal of prosecutors, judges, and lawmakers was at its peak.  As a result, the American prison population is aging, with growing proportions of incarcerated people in their 50s, 60s, and older who increasingly require expensive medical care and who are unlikely, if released, to commit future crimes.  People also remain imprisoned for convictions that result in far shorter terms today, meaning people are caged, separated from their families and communities, for reasons we now accept cannot be justified.

The power to commute sentences and pardon convictions — held, at the federal level, by the president, and by virtually all governors or governor-appointed boards in the states — can efficiently reduce this over-incarceration, while also redressing racial injustice that pervades the criminal legal system, including in sentencing.  Our polling shows national support for using executive clemency in precisely this way.  In particular, voters support commuting sentences of categorical groups based on age, health, time served, the nature of the offense, and as a means to reduce racial disparities and maintain consistency with current sentencing practices.

The polling results are relatively consistent no matter the specific inquiry in this poll, with roughly 50% to 70% of all respondents supporting sentence commutations for various populations and with Democrats generally supporting clemency by about 10% to 20% more than Republicans (and Independents in between). Again, I highly recommend clicking through to see all the details.  Interestingly, a question that focuses on giving retroactive relief based on new laws generated the strongest of all the responses in support of commutations:

Commutations based on time served:

  • 73 percent of likely voters, including 78 percent of Democrats, 78 percent of independents, and 65 percent of Republicans, support commuting the sentences for individuals who have already served more than what current law requires for that offense.

April 29, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

April 29, 2021 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (0)

April 28, 2021

Not even much lip service about sentencing reform in Prez Biden's first address to Congress

Prez Joe Biden gave a very lengthy speech this evening (full text here), but it only included a precious few sentences about criminal justice reform.  Here are these sentences:

We have all seen the knee of injustice on the neck of Black America. Now is our opportunity to make real progress.

Most men and women in uniform wear their badge and serve their communities honorably.  I know them.  I know they want to help meet this moment as well.

My fellow Americans, we have to come together.  To rebuild trust between law enforcement and the people they serve. To root out systemic racism in our criminal justice system.  And to enact police reform in George Floyd’s name that passed the House already.

I know the Republicans have their own ideas and are engaged in productive discussions with Democrats.  We need to work together to find a consensus.  Let’s get it done next month, by the first anniversary of George Floyd’s death.

The country supports this reform.  Congress should act.

Though I was pleased to hear small mention of policing reform by Prez Biden, I was disappointed (though not really surprised) that there was not any other mention of any other criminal justce reform efforts.  And this new NPR piece, headlined "Activists Wait For Biden To Take Bold Action On Criminal Justice Reform," picks up this theme.  Here are excerpts:

President Biden campaigned on a plan to remake the criminal justice system. He admitted that many of the tough-on-crime positions he staked out 30 years ago just did not work.  He said he would focus on drug treatments and on cutting long mandatory prison sentences.  NPR's Carrie Johnson has been talking to progressive activists who are waiting for that to happen....

JOHNSON: The Biden White House has been talking regularly with [Inimai] Chettiar and others who want to overhaul the justice system. Kevin Ring advocates for people in prison at the group Families Against Mandatory Minimums.

KEVIN RING: FAMM's been around 30 years. I don't know that we've ever had that kind of outreach from the White House or the Justice Department.

JOHNSON: Ring says he had a guarded optimism about Biden based on his campaign rhetoric.

RING: But there was also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about.

JOHNSON: Ring says it's still early, but the White House seems to be trying to lay the groundwork for more foundational change. Kara Gotsch of the Sentencing Project isn't so sure about that.

KARA GOTSCH: The lip service is good, but we need more, more action....

JOHNSON: Other advocates credit the Biden team for supporting bipartisan legislation that would finally equalize the penalties for people caught with crack cocaine.  Since the 1980s, offenses involving crack have been punished 100 times more harshly than the powder form of the drug, which has been more popular with white people.  Chettiar of the Justice Action Network thinks that bill could become law this year.  With Congress so closely divided between the two political parties, the odds of legislation that would transform the justice system are pretty slim.  That's why advocates are pushing the White House and DOJ to go big now before time runs out.

April 28, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (14)

Is Justice Kavanaugh eager to bring proportionality review to government sanctions ... to protect speech under the First Amendment?

It comes as no suprise that a lot of attention is being given to the Supreme Court case argued today inolving a First Amendment claim brought by a young public high schooler suspended from the cheerleading squad for dropping f-bombs on his Snapchat.  This Politcio piece reviews the basics of the arguments, and I was both surprised and struck by a comment during argument by Justice Kavanaugh.  Here, via this oral argument transcript from Mahanoy Area School Dist. v. B. L., is the comment and context (with my emphasis added):

[A]s a judge and maybe as a coach and a parent too, it seems like maybe a bit of over -- overreaction by the coach.

So my reaction when I read this, she's competitive, she cares, she blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup or not making all league....

So maybe what bothers me when I read all this is that it didn't seem like the punishment was tailored to the offense given what I just said about how important it is and you know how much it means to the kids.  I mean, a year's suspension from the team just seems excessive to me.

But how does that fit into the First Amendment doctrine or does it fit in at all in a case like this?

I lack the First Amendment expertise to know if the notion of reviewing state sanctions for excessiveness or proportionality is particularly notable or novel.  But I have enough Eighth Amendment expertise to know it could be so vauabe if Justice Kavanaugh and other Justices were far more willing to question state sanctions in the form of extreme prison terms when they do not "seem like the punishment was tailored to the offense" and "just seems excessive."

Though finding notable these comments by Justice Kavanaugh about what seemed to him an excessive punishment, I doubt we should be expecting him to carry these sentiments over the the Eighth Amendment.  After all, Justice Kavanaugh's first big Eighth Amendment ruling functionally limited its protection for juvenile murderers via the Jones opinion.

April 28, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"Harm Reduction at the Center of Incarceration"

The title of this post is the title of this notable new report from Square One Project authored by Nneka Jones Tapia who, according this press release, is "one of the first clinical psychologists to ever run a jail" and who has piloted "innovative healing-centered programs at Cook County Jail.  Here is an overview of the report from this webpage discussing its contents:

Everyone within a correctional facility — both the staff and the people housed there — is exposed to trauma at a significantly higher rate than the general population.  In this sense, the institution itself is traumatic.  And because of the connective tissue that exists among all of us, the effect of this traumatic system spreads beyond the walls of an institution and into families and communities.

Physical and procedural transformation of correctional facilities is imperative to promoting harm reduction at large.  The STAAC framework for harm reduction can guide necessary shifts in correctional system policy, procedure, and training to support the health of correctional staff and their families, the people housed in the facility and their families, and the broader community.

April 28, 2021 in Prisons and prisoners | Permalink | Comments (0)

April 27, 2021

Evan Miller, of Miller v. Alabama, sentenced again to LWOP for murder committed when he was only 14

As reported in this AP piece, headlined "Juvenile lifer who set precedent sentenced to life again," a high-profile juvenile murderer was sentenced yet again to life in prison without parole despite having helped win a Supreme Court ruling reversing his original LWOP sentence. Here are the details:

Evan Miller was just 14 when he committed the slaying that sent him to prison. In reviewing his case, the U.S. Supreme Court banned mandatory life without parole sentences for juveniles — saying judges and juries should consider the special factors of youth — a decision that eventually led to inmates across the country getting a chance at release.

But Miller will not get that chance. A judge on Tuesday handed down a second life sentence without possibility of parole.

Lawrence Circuit Judge Mark Craig ruled that Evan Miller, despite being a young teen when he committed his crime, met the legal criteria to be sentenced to life in prison without the chance of parole. Craig said the severity of Miller’s crime outweighed the mitigating factors of Miller’s age and his abuse-filled childhood that the defense argued made him deserving of an opportunity of a chance to get out of prison some day. Craig said a sentence of life without the possibility of parole was the “only just sentence” over the lesser punishment of life with a chance of parole after 30 years.

Miller was 14 in 2003 when he and another teen beat Cole Cannon with a baseball bat before setting fire to his trailer, a crime for which he was originally sentenced to a mandatory life sentence. Before handing down the sentence, Craig repeated the line that Miller was attributed with saying before he delivered a final blow to Cannon: “I am God. I’ve come to take your life.” Craig said those were some of “the most chilling words I have heard.”

Craig said he was not convinced Miller could be rehabilitated and noted that Miller was the primary aggressor in the slaying. “Had you not made the decisions that night, Mr. Cannon, in my view, would still be alive,” Craig said. “You showed cunning, not clumsy, rash thinking.”

Miller, now 32, appeared during the hearing, which was conducted virtually, by video link from an office at the Alabama prison where he is incarcerated. He did not visibly react as the sentence was read.

The Supreme Court in 2012 ruled in Miller’s case that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In the 2012 opinion in Miller’s case, justices ordered that judges and juries should consider “children’s diminished culpability, and heightened capacity for change” should make such sentences “uncommon.”...

While other juvenile lifers across the country have seen their sentences reduced because of Miller’s case and a later ruling that made the decision retroactive, his own case had lingered without a decision until Tuesday. At an earlier resentencing hearing, Miller’s lawyers cited his childhood of physical abuse and neglect and argued that at 14, his brain was not fully developed....

Alabama Attorney General Steve Marshall said the judge, “restored the punishment that is fitting for Evan Miller’s wicked actions.” “When Evan Miller robbed and savagely beat his neighbor, setting fire to the man’s trailer and leaving his incapacitated victim to die a horrible death, he earned a well-deserved sentence of life in prison without parole,” Marshall said in a statement.

April 27, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"The Fate of Lethal Injection: Decomposition of the Paradigm and Its Consequences"

The title of this post is the title of this new article by multiple authors now available on SSRN.  Here is its abstract:

This article examines the use of lethal injection from 2010-2020.  That period marks the "decomposition" of the standard three drug protocol and the proliferating use of new drugs or drug combinations in American executions.  That development is associated with an increase in the number and type of mishaps encountered during lethal injections.  This article describes and analyzes those mishaps and the ways death penalty jurisdictions responded, and adapted, to them.  It suggests that the recent history of lethal injection echoes the longer history of the death penalty.  When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing methods.  When tinkering failed, they adopted allegedly more humane execution methods.  When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty from public view.  New drugs and drug combinations may have allowed the machinery of death to keep running.  New procedures may have given the lethal injection process a veneer of legitimacy.  But none of these recent changes has resolved its fate or repaired its vexing problems.

April 27, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Detailing the "nightmare" following the Supreme Court's McGirt ruling

The Washington Times has this lengthy new article discussing the fallout of the Supreme Court's notable ruling last summer in McGirt v. Oklahoma under the headlined, "'A nightmare': Supreme Court ruling upends Oklahoma prosecutions of American Indians."  Here are excerpts:

A Supreme Court ruling that bars state prosecutions of American Indians in Oklahoma for crimes on tribal land has led to a wave of appeals from convicts, a rising backlog of cases in federal and tribal courts, and an accused serial rapist walking away free on a technicality. “If you were going to make a nightmare, you couldn’t make one better than this,” said Scott Walton, sheriff in Rogers County, Oklahoma.

Before the high court handed down its ruling in July, the U.S. attorney’s office for the Northern District of Oklahoma prosecuted about 240 cases a year. The office now is indicting about 100 cases a month, about five times more, as the federal government picks up cases formerly in the state’s jurisdiction.

In the past eight months, the U.S. attorney’s office has accepted 600 major felony cases for prosecution and sent 830 less-serious cases to tribal courts. Some prosecutions are falling through the cracks because of statutes of limitation for some federal crimes — a legal hurdle state prosecutors didn’t face.

“There is a small percentage of cases that cannot be prosecuted due to lack of/loss of evidence or due to the federal statute of limitations,” said a spokesperson for the U.S. attorney’s office in the Northern District of Oklahoma. “Our office continues to work closely with district attorneys and tribal attorneys general to ensure a seamless transfer of cases for prosecution.”

For minor crimes that carry maximum prison sentences of three years or less, tribal courts have the authority to prosecute defendants.  Critics say the Supreme Court’s 5-4 ruling in McGirt v. Oklahoma left certain crimes such as larceny, which can carry a five-year sentence, in limbo between tribal courts and federal courts. Another concern is that federal prosecutors will focus on violent crimes such as rape and murder, leaving home burglary and others unresolved.  “Those cases just won’t get prosecuted,” Sheriff Walton said.

The McGirt case has major implications in Oklahoma because about half of the land in the state is considered Indian country, covering dozens of tribes.  The city of Tulsa, which has a population of more than 400,000, sits predominantly on a reservation.  The high court’s ruling, which sent shock waves through the state, overturned the conviction of Jimcy McGirt, an American Indian charged with sexually abusing a 4-year-old girl in 1996.

The court’s majority agreed with McGirt’s argument that the state didn’t have jurisdiction to prosecute him because the crime took place on a reservation and he is American Indian.  The justices said Congress never disestablished the 1860s-era boundaries of the Muscogee (Creek) Nation’s reservation.  Justice Neil M. Gorsuch, a Trump appointee, joined four Democratic appointees, including Ruth Bader Ginsburg, in overturning McGirt’s conviction....

The U.S. attorney’s office for the Eastern District of Oklahoma, like the Northern District, has had a surge in cases. In one week this month, the office returned 90 felony indictments — more than the office normally brings in a full calendar year.  An internal source said the U.S. attorney’s office for the Eastern District could be handed 200 murder cases to try by the end of May.  “It is a conundrum without certainty,” the source told The Washington Times, speaking on the condition of anonymity. “We need some sort of legislative fix.

Many convicted felons are citing the McGirt case in appeals in an effort to overturn their sentences.  Robert Gifford, a lawyer who works with tribes in Oklahoma, dismissed law enforcement’s concerns. He said most accused felons will be prosecuted again.  “They are portraying it that these people are walking free, but most of the major cases are being picked up federally,” he said.  “Any major crimes would go to the U.S. attorney’s office.”

Prior related posts:

April 27, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

DEPC and NASC present "Justice Counts: Using Data to Inform Policy and Bolster Public Safety"

NASC-Workshop-Series-May-4_for-web-and-email2I am pleased to report that next week, the Drug Enforcement and Policy Center (DEPC) is kicking off its 2021 Sentencing Workshop Series in collaboration with National Association of Sentencing Commissions (NASC) with a terrific event titled "Justice Counts: Using Data to Inform Policy and Bolster Public Safety."  This is how this event is described on this page (where you can register):

Please join the National Association of Sentencing Commissions and the Drug Enforcement and Policy Center for a series of virtual sentencing workshops that bring together leaders from sentencing commissions, the judiciary, and academia.

Justice Counts: Using Data to Inform Policy and Bolster Public Safety.

Tuesday, May 4, 2021 at 12–1 p.m. CDT / 1–2 p.m. EDT | Zoom

This moderated panel discussion will focus on a new national initiative designed to help states make criminal justice data more accessible, clear, and usable for policymakers.  Backed by a coalition of 21 national partner organizations and funded by the U.S. Department of Justice’s Bureau of Justice Assistance, Justice Counts brings together state and local leaders to reach consensus about a limited set of criminal justice metrics that leaders can use to inform budget and policy decisions. The initiative also includes a scan of public, aggregate-level criminal justice data and identifies existing gaps in data reporting.

Panelists:

Megan Grasso, Deputy Program Director, The Council of State Governments Justice Center

Sarah Lee, Policy Analyst, The Council of State Governments Justice Center

Carl Reynolds, Senior Legal and Policy Advisor, The Council of State Governments Justice Center

Ken Sanchagrin, Executive Director, Oregon Criminal Justice Commission

Scott Schultz, Executive Director, Kansas Sentencing Commission

Moderator:

Bennet Wright, Executive Director, Alabama Sentencing Commission

Resources:

Justice Counts website
Justice Counts project overview document

April 27, 2021 in Data on sentencing, Detailed sentencing data | Permalink | Comments (0)

April 26, 2021

"Handling Aggravating Facts After Blakely: Findings From Five Presumptive-Guidelines States"

The title of this post is the title of this great new paper authored by Nancy King ow available va SSRN. Here is its abstract:

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range.  Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice.  This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

April 26, 2021 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Some death penalty news and notes from around the USA

I have noticed a number of notable recent new press pieces about death penalty issues, and I figured a round up was in order: 

From the AP, "MO Supreme Court continues death penalty trial despite positive COVID-19 cases"

From the Canton Repository, "Canton man's new mission: Eliminating Ohio's death penalty"

From CNN, "Biden vowed to end the death penalty. Activists are demanding action as he nears the 100-day mark"

From Nevada Public Radio, "Will Nevada Abolish The Death Penalty?"

From the Tennessean, "Tennessee legislature: Courts allowed to reconsider death sentences over intellectual disability appeal"

April 26, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Andrea Fenster and Margo Schlanger. Here is how it gets started:

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act.  The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits.  For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies.

When the PLRA was being debated, lawmakers who supported it claimed that too many people behind bars were filing frivolous cases against the government.  In fact, incarcerated people are not particularly litigious. Instead, they often face harsh, discriminatory, and unlawful conditions of confinement — and when mistreated, they have little recourse outside the courts. And when incarcerated people do bring lawsuits, those claims are extremely likely to be against the government since nearly all aspects of life in prison are under state control.  While prison and jail officials may occasionally feel overwhelmed by these lawsuits, cutting off access to justice ensures only that civil rights violations never reach the public eye, not that such violations never occur.

The PLRA should be repealed.  It was bad policy in the 1990s — an era full of unfair, punitive, and racist criminal justice laws — and allowing it to continue today is even worse policy.

April 26, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (4)

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

April 26, 2021 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

April 25, 2021

"A Primer on Risk Assessment for Legal Decisionmakers"

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

This primer is addressed to judges, parole board members, and other legal decisionmakers who use or are considering using the results of risk assessment instruments (RAIs) in making determinations about post-conviction dispositions, as well as to legislators and executive officials responsible for authorizing such use.  It is meant to help these decisionmakers determine whether a particular RAI is an appropriate basis for legal determinations and whether evaluators who rely on an RAI have done so properly.  This primer does not take a position on whether RAIs should be integrated into the criminal process.  Rather, it provides legal decision-makers with information about how RAIs are constructed and the types of information they provide, with the goal of facilitating their intelligent selection and use.

April 25, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)