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May 29, 2021

"Mala Prohibita and Proportionality"

The title of this post is the title of this paper authored by Youngjae Lee recently posted to SSRN.  Here is its abstract:

What is the proportionate punishment for conduct that is neither harmful nor wrongful?  A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent.  Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor.  Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on.  But practicing investment advising without registering is a crime for which one may be convicted and punished.

When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different.  But in what way?  One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum.  Some offenses, like murder, are wrongs “in themselves” (“in se”) whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited (“prohibitum”).  The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses.  This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront.

May 29, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

May 28, 2021

High-profile reminder that parole is rarely a given, especially for a prisoner claiming innocence

Though decided earlier this month, a high-profile denial of parole is garnering headlines this week.  This USA Today story, headlined "Bill Cosby denied parole after he refuses sex offender treatment program," provides these details:

Bill Cosby will not be released from prison anytime soon.  The 83-year-old actor, who is currently serving three to 10 years in Pennsylvania state prison after being convicted of sexual assault in 2018, has been denied parole nearly three years into his sentence.

The Pennsylvania State Parole Board declined Cosby's parole request on May 11 partly over his need to participate in "a treatment program for sex offenders and violence prevention," and "failure to develop a parole release plan," according to a state board action letter provided to USA TODAY.  The board also cited a "negative recommendation" from the Department of Corrections.

Cosby's representative, Andrew Wyatt, told USA TODAY Thursday that the decision "is not a surprise" to the disgraced TV star because the board explicitly stated he would be denied parole "if he did not participate in SVP (Sexually Violent Predator) courses."  But Wyatt said Cosby, who has maintained his innocence, has no plans to attend the therapy programs. "The Cosby Show" star has previously said he expects to serve his full 10-year sentence and vowed to show no remorse for crimes he said he didn't commit.

"Mr. Cosby has vehemently proclaimed his innocence and continues to deny all allegations made against him, as being false, without the sheer evidence of any proof," Wyatt said in a statement to USA TODAY on Thursday.  "Mr. Cosby continues to remain hopeful that the Pennsylvania State Supreme Court will issue an opinion to vacate his conviction or warrant him a new trial."

Cosby was the first celebrity to go on trial in the #MeToo era and was convicted of drugging and raping Andrea Constand, a former professional basketball player who worked for his alma mater, Temple University, in Philadelphia in 2004.  Cosby appealed his conviction, citing multiple alleged "errors" by the trial judge in his case, but the state appeals court upheld his verdict in December 2019.  The Pennsylvania Supreme Court accepted Cosby's appeal in June 2020, thus raising the possibility it might be overturned in the future....

He's currently serving out his sentence at State Correctional Institution at Phoenix, a state prison in Skippack Township, Pennsylvania.  He will be eligible for parole in September after serving the three-year minimum of his sentence.  To be considered for parole, the Pennsylvania State Parole Board said Cosby not only needs to complete a treatment program, but he must maintain a "clear conduct record."

May 28, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Most of California DAs file court action challenging new rules expanding good behavior credits to state prisoners

As reported in this recent AP piece, "three-quarters of California’s district attorneys sued the state Wednesday in an attempt to block emergency rules that expand good conduct credits and could eventually bring earlier releases for tens of thousands of inmates."  Here is more about the suit:

The lawsuit objects on procedural grounds, arguing that Corrections Secretary Kathleen Allison used the emergency declaration to bypass the usual regulatory and public comment process.  The rules affecting 76,000 inmates, most serving time for violent offenses, took effect May 1, although it will be months or years until inmates accumulate enough credits to significantly shorten their sentences.

Forty-four of the state’s 58 district attorneys brought the lawsuit, which says the only stated emergency was the corrections department’s desire to follow the “direction outlined in the Governor’s Budget Summary” nearly a year earlier.  Notably absent were district attorneys in Los Angeles and San Francisco who have backed criminal sentencing changes.

The lawsuit asks a Sacramento County Superior Court judge to throw out the regulations and bar the department from granting any of the good conduct credits until it goes through the regular process.  “There is no actual emergency, and they cannot meet those emergency requirements,” the lawsuit contends.  “Nowhere in the supporting documents is there an explanation of how last year’s budget has become an operational need for the adoption of the regulations on an emergency basis.”

The department said it acted under the authority given it by voters when they passed Proposition 57 in 2016, allowing earlier parole for most inmates.  It “filed regulations to promote changes in good behavior credits, and followed all policies and procedures by the Office of Administrative Law,” the department said in a statement promising to “continue to work with our partners to promote rehabilitation and accountability in a manner consistent with public safety.”

The emergency rules boost good behavior credits for a projected 63,000 inmates convicted of violent crimes, allowing them to prospectively serve two-thirds of their sentences rather than the previous 80%.  Another 10,000 prisoners convicted of a second serious but nonviolent offense and nearly 2,900 nonviolent third strikers would be eligible for release after serving half their sentences, down from two-thirds.  Inmate firefighters and minimum-security inmates in work camps, regardless of the severity of their crimes, are eligible under the new rules for a month of earlier release for every month they spend in the camp.

A press release about the suit from the Sacramento County District Attorney's Office is available here, and the actual filing is available here.

A few recent related posts:

May 28, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

May 27, 2021

"The Persistence of Penal Disenfranchisement: Suppressing Votes the Old Fashioned Way"

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

This article discusses penal disenfranchisement, the practice of prohibiting millions of American citizens who have been convicted of crimes from voting.  Most states have laws providing for penal disenfranchisement.  The article argues that barring individuals from voting by reason of a prior criminal conviction is both unjustified and counterproductive. The public interest is best served by integrating individuals who have offended into society, and this interest is not served by denying such individuals the right to vote.

The article explores the history of penal disenfranchisement and the various reasons that have been offered over the years in support of it, both non-punitive and punitive, and explains why none are persuasive.  Further, the piece argues that the practice of penal disenfranchisement is particularly harmful to the interests of the African-American community.  Finally, the article discusses whether there are any possible means of relief for people disenfranchised because of a prior conviction.  With respect to legal remedies, the article concludes that Supreme Court precedent regarding the issue unfortunately is unhelpful.  The article also finds that at the present time, it is unlikely that a great deal of progress is likely to be made through legislation.

May 27, 2021 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (5)

"What's the right age for juvenile criminals to be considered adults? Advocates and some states push it past 20."

The title of this post is the headline of this notable recent lengthy Des Moines Register piece. Here are excerpts:

Four years ago, juvenile justice advocates celebrated a huge win: North Carolina ended its status as the last state in the nation that automatically considered anyone 16 years old or older an adult in the criminal justice system.  When North Carolina raised the age to 18, the change was more than a dozen years in the making.  Now, advocates are setting their sights — and their desired age limit — higher.

And they're winning.  Vermont, Massachusetts, Connecticut and Illinois raised or are looking to increase the age of juvenile jurisdiction through age 20 or created separate courts or parole allowances for those ages 18 to 25.  Similar bills have moved or are being considered in California, Colorado, Washington, D.C., and Florida.  Backed by evidence of racial disparities, court cases and research showing a person’s brain isn’t fully developed until at least 25, states see kids as kids and emerging adults as not fully developed and still prone to immature behavior.

“We've really seen a reversal of the trend in the ’90s, which was to treat more children as adults — sort of the ‘adult crime and adult time’ mindset,” said Karen Lindell, senior attorney with the Juvenile Law Center.  Studies showed minors sentenced in the adult system not only committed more crimes upon release than peers in the juvenile system but also engaged in more serious crimes, Lindell said.

U.S. Supreme Court rulings struck down the death penalty for juveniles and ended mandatory life without parole in all but homicide cases — then for all crimes.  Faced with the research and those rulings, state officials started looking at trends showing juvenile crime rates were plummeting.  In 2019 — the latest year data is available — minors accounted for the fewest arrests in nearly 40 years, roughly 700,000, according to the U.S. Department of Justice.  The biggest drops in juvenile crime were over the past 10 years — a 58% drop overall and a 40% falloff in violent crime.  By comparison, the department said violent crime among adults was down 7%.

Forty-seven states automatically charge those under 18 as juveniles for all but the most serious offenses, such as murder or sexual assault.  Michigan and Missouri joined the list over the past year.  Michigan is working on the Holmes Youthful Trainee Act, which would give people ages 17 to 23 the chance to wipe even felonies from their records.  "No state should want to be the last jurisdiction to automatically prosecute and sentence youth under 18 as adults," said Lael Chester, director of the Emerging Adult Justice Project at Columbia University’s Justice Lab.

Officials in the remaining three states — Georgia, Wisconsin and Texas — have considered bumping the cutoff age to 18.  All three states set the age at 17.  It's not just the ceiling for juvenile jurisdiction being raised: The floor is being lifted as more states increase the age at which minors can first enter the juvenile system. Massachusetts set the floor at age 12. Illinois lifted it to 14.

As on most state-level changes, states look to their peers for guidance, said Anne Teigen, the program director for juvenile justice at the National Conference of State Legislatures.  Other state lawmakers are looking at Vermont.  That state set the age of juvenile jurisdiction through age 18 last year, and that limit will increase to 19 in July 2022 and 20 in 2024.  Vermont started moving in the direction of raising the age in 2016, when then-Gov. Peter Shumlin, a Democrat, signed a law enabling anyone 21 or younger charged with a nonviolent crime to be eligible for juvenile offender status....

Recently, Illinois lawmakers have debated a bill that would raise the age for juvenile consideration to those under 21 and separately, a measure to reintroduce parole to the state  — something that was ended in 1978.  Illinois, like other states, says adulthood begins at 21 for alcohol and tobacco use, so the same age should be applied to criminal behavior, said state Sen. Laura Fine, a Democrat.  "Their brains are not fully developed," Fine said. "And if you put yourself in their position, think of what you did when you were 18. A lot of people were lucky because they did stupid things, and they didn't get caught."

Many law enforcement organizations oppose the move, and the bill, which won early support, stalled as lawmakers worked on other major criminal justice changes, such as getting rid of cash bail.  "We think that what people do when they're 20 or 21 is quite a bit different from what people do when they're 13 and 14.  And the kinds of opportunities that we give to 13- and 14-year-olds seem rather appropriate most of the time," said Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police, which opposes the measure....

If the Illinois bill becomes law, Columbia University's Chester said, it could swing other states in that direction.  “Illinois would be the second state to move in that direction, but it would be a big deal," Chester said. "As momentous as Vermont is, it's a very small state.  And I think the bigger states, having Illinois with a very large population — the big city of Chicago — that is more influential on the national stage.”

May 27, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.  The district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.  Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

May 27, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

May 26, 2021

Notable (and huge) sentence reductions used to remedy stacked 924(c) sentences for crooked cops

As reported in this Baltimore Sun article, headlined "Corrupt former Baltimore Police officers get sentences reduced from 454 years to 20 years," a couple of crooked cops this week got their sentences reduced considerably to undo the now-repealed harshness of severe stacking mandatory minimum 924(c) counts thanks to the FIRST STEP Act.  Here is a summary from the press account:

Two former Baltimore Police officers sentenced to a combined 454 years in federal prison for shaking down citizens in the early 2000s had their prison terms reduced to 20 years each by a federal judge Monday.

U.S. District Judge Theodore D. Chuang agreed with arguments put forward by attorneys for William King and Antonio Murray earlier this year under the First Step Act, noting that since their convictions in 2006 Congress has passed sentencing reforms that would have led to significantly shorter sentences if the officers were sentenced today....

The U.S. Attorney’s Office agreed that the sentences should be reduced, but to 30 years for Murray, and 65 years for King. “Neither sentence is unreasonable given the offense conduct in this case,” Assistant U.S. Attorney Sandra Wilkinson wrote.

The officers’ attorneys noted that former Gun Trace Task Force Sgt. Wayne Jenkins, who pleaded guilty to years of robberies and drug dealing, received 25 years in prison in 2018....  Chuang agreed, saying 20 years for King and Murray “roughly corresponds with the type of sentences presently imposed in comparable police corruption cases in this District.”...

Prior to the Gun Trace Task Force case, the case of King and Murray was one of the highest-profile Baltimore police corruption cases.  The officers, who were assigned to the BPD’s public housing drug unit, were called out in the “Stop Snitching” underground video, with a man on the tape saying the officers looked out for certain drug dealers.  A man they shook down went to the FBI, and authorities launched an investigation that found the officers were detaining and robbing drug dealers.

At the time, the officers “maintained that their activities were all in furtherance of legitimate police activity in an effort to develop sources to lead to arrests of drug distributors,” said prosecutors, adding the officers claimed they used their ill-gotten money to pay informants who could help them catch those higher up in the drug gangs.  King later said the tactics were imported by the department’s New York police leadership, and blamed immense pressure to reduce crime as the reason he and some colleagues went bad.

The men were convicted of robbery, extortion, and drug and handgun offenses, which each had penalties that were “stacked” at sentencing.  The sentencing judge, J. Frederick Motz, lamented at the time that the sentences were “absolutely disproportionate to the crimes that were committed” but said he had no discretion to depart from the mandatory sentencing laws.

The opinions from the district court in these two cases can be downloaded below:

Download United States v. William King No 05-cr-00203 (May 24 2021 D. Md.)

Download United States v. Antonio Murray No 05-cr-00203 (May 24 2021 D. Md.)

May 26, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (0)

AG Garland announces new(?) federal effort to reduce violent crime

This new press release and this new detailed guidance from the Deputy AG sets forth the particulars of "a new Department of Justice effort to help protect our communities from the recent increase in major violent crimes."  I am not really sure there is actually much that is really new here, but the focus and framing (and future follow up) is interesting to see coming from our new Attorney General as the US continues to experience an uptick in homicides and gun assaults.  Here is part of the press release:

The strategy announced today is three-pronged. First, it establishes a set of four fundamental principles to be applied Department-wide to guide violent crime reduction:

  1. Build trust and earn legitimacy. Meaningful law enforcement engagement with, and accountability to, the community are essential underpinnings of any effective strategy to address violent crime, as well as important ends in themselves. Accordingly, building trust and earning legitimacy within our communities is the foundation on which the strategy is built. 
  2. Invest in prevention and intervention programs. Violent crime is not a problem that can be solved by law enforcement alone. Accordingly, the Department must invest in community-based violence prevention and intervention programs that work to keep violence from happening before it occurs.
  3. Target enforcement efforts and priorities. The Department is most effective when it focuses its limited enforcement resources on identifying, investigating, and prosecuting the most significant drivers of gun violence and other violent crime.
  4. Measure results. Because the fundamental goal of this work is to reduce the level of violence in our communities, not to increase the number of arrests or prosecutions as if they were ends in themselves—we must measure the results of our efforts on these grounds.

I did not see anything in these materials concerning sentencing policies or practices, though all federal prosecutorial priorities and plans necessarily ripple into sentencing advocacy and outcomes in some way. 

May 26, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional

I flagged in this post last week that the US Sentencing Commission had just released a host of notable new materials with lots of interesting data via the USSC's website.  Upon reflection and review, I was especially struck by this new data run detailing retroactive application of "Amendment 782 -- The 2014 Drug Guidelines Amendment, often referred to as 'Drugs Minus Two'."  These data reminded me of how impactful a functional and forward-thinking US Sentencing Commission can be on its own ... and why I hope Prez Biden will soon put forward nominations that would lead the USSC to become functional and forward-looking once again.

A bit of background, drawn from this report: "On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that ... reduced by two levels the offense levels assigned to [drug] quantities....  On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782."  In other words, the USSC in 2014 reduced the basic guideline offense level by two for all drug offenses and made this change retroactively applicable to all federal drug defendants still imprisoned for offenses before 2014.  Because drug offense are a huge part of the federal criminal docket and an even larger part of the federal prison population, this relatively small guideline change has had a huge prison time impact.

Specifically, as this retroactive new data report details, a total of 31,908 persons in federal prison were granted sentence reductions that averaged 26 months.  In other words, the retroactive application of the "drugs -2" guideline amendment resulted in just about 70,000(!) years of retroactive reduced imprisonment.  Further, with well over 100,000 federal drug cases sentenced over the last six years, the "prospective" impact of the  drugs -2 guideline amendment has surely been at least another 200,000 years of reduced imprisonment for federal drug offenders (and still counting). 

Critically, the drugs -2 amendment was not a direct reaction to any congressional legislation, it was a (bipartisan) decision made by a (bipartisan) expert commission shaped by evidence and sound policy analysis in all respects.  In other words, this was a consequential (decarceal) reform moved forward in precisely the good-government process that Judge Marvin Frankel envisioned when he astutely suggested the creation of a Commission on Sentencing for the federal criminal justice system. 

Sadly, the US Sentencing Commission is now essentially non-functional, at least for guideline amendments and any big initiatives, for going on three years because of the lack of commissioners.  As discussed in a number of prior posts linked below, I hope Prez Biden will get the USSC up and running again.  In the meantime, I will keep doing posts to note the wisdom and reform potential we risk losing until the USSC is functional and forward-looking once again.

 A few prior recent related posts:

May 26, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration"

The title of this post is the title of this new paper authored by Michael Conklin now availabe via SSRN.  Here is its abstract:

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism.  States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs.  The need for such common-sense reform is timely.  COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes.  This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”

This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience.  This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience.  It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities.  These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

May 26, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

May 25, 2021

Latest Federal Sentencing Reporter issue explores data and sentencing from many perspectives

M_fsr.2021.33.4.coverI am so very pleased to report on that the latest issue of the Federal Sentencing Reporter is now available online here.  This issue is titled "Making Sense of Sentencing Data" and it has a number of terrific articles from an array of authors examining sentencing data issues from a number of perspectives.  I highly encourage everyone to check out the full issue, and here is a list of the original articles in this FSR issue:

Deciphering Data by Steven L. Chanenson & Douglas A. Berman

Mapping The Modern Sentencing Data Landscape From the Bird’s Eye: The Sixth Circuit’s Efforts to Breathe Life into Substantive Reasonableness Review by Xiao Wang

Harnessing the Power of Data: The Role of Sentencing Commissions in the Information Age by Mark H. Bergstrom, Brett A. Miller & Jordan T. Zvonkovich

The Ohio Data Story in Three Part: The Setup, the Confrontation, and the Resolution by Sara Andrews

The Relationship of Judicial and Prosecutorial Elections to the Availability of Sentencing Data in the United States by Niki Hotchkiss

Anticipating the Judicial Response to Ohio’s Proposed Statewide Sentencing Database by Scott A. Anderson

Here Come the Judges: A Judicial Response to Anticipated Concerns over a Statewide Criminal Sentencing Database—Aligning Algorithmic Risk Assessments with Criminal Justice Values by Justice Michael P. Donnelly, Judge Gene A. Zmuda & Judge Pierre H. Bergeron

Under a Microscope? Show Them the Data by Judge Jeffrey L. Reed

Overview of State Sentencing Commissions’ Drug Data Reporting Practices by Benjamin L. Chanenson

Why and How We Need to Fill Criminal Justice Data Gaps by Arthur Rizer & Dan King

Good Data, Good Law by John Tilley, Serena Chang & Richard J. Peay

Using Data to Achieve Justice Reform by Ashley Nellis

Seeking Racial Justice Through Data in 2021 and Beyond by Melba V. Pearson

COVID-19 Vaccine Refusal and Related Factors: Preliminary Findings from a System-Wide Survey of Correctional Staff by Jordan M. Hyatt, Valerio Baćak & Erin M. Kerrison

Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads by Mugambi Jouet

May 25, 2021 in Data on sentencing, Recommended reading | Permalink | Comments (0)

CCJ's commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime"

6a00d83451574769e20263e9590f4e200bnoted here last summer that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has produce a number of important works (examples here and here and here), and it has produced a series of reports on recent crime trends under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of the full report, called a March 2021 update, is available at this link.  This webpage, titled "Impact Report: COVID-19 and Crime," provides this overview:

This report examines changes in crime rates in 34 American cities since the start of the COVID-19 pandemic in 2020, with a special emphasis on homicide and other violent crimes. The current study updates previous studies by the authors with additional data through March 2021. The study was conducted by criminologist and Professor Emeritus Richard Rosenfeld and Ernesto Lopez of the University of Missouri – St. Louis and Thomas Abt, Commission Director and Council on Criminal Justice Senior Fellow.

Methodology

This study examines monthly crime rates for ten violent, property, and drug offenses in 34 U.S. cities.  Not all cities reported monthly data for each crime.  The largest city in the sample is New York, with 8.42 million residents.  The smallest is Norfolk, Virginia, with 245,000 residents. The crime data were obtained from the online portals of city police departments. The data are subject to revision, and offense classifications varied somewhat across the cities.

Findings

  • During the first quarter of 2021, homicide rates declined from their peak in the summer of 2020, but remained above levels in the first quarter of prior years. The number of homicides rose by 24% compared to the first quarter of 2020 (an increase of 193 homicides) and by 49% compared to the first quarter of 2019 (an increase of 324 homicides).
  • Despite recent increases, the 2020 year-end homicide rate in the study sample was just over half what it was for those cities 25 years ago (11.4 deaths per 100,000 residents in those cities versus 19.4 per 100,000 in 1995).
  • Aggravated and gun assault rates were also higher in the first quarter of 2021 than in the same period of 2020.  Aggravated assault rates increased 7%, while gun assault rates went up by 22%.
  • Burglary, larceny, and drug offense rates were lower in the first quarter of 2021 than during the first quarter of 2020.  Residential burglary, non-residential burglary, larceny, and drug offense rates dropped by 16%, 7%, 16%, and 24% from the same period in 2020.  Motor vehicle theft rates were 28% higher in the first quarter of 2021 than the year before.
  • Domestic violence did not increase in the first quarter of 2021 over the first quarter of 2020. This result is based on just 11 of the 32 cities and should be viewed with caution.
  • In response to elevated rates of homicide, the authors conclude that urgent action is required.  As the pandemic subsides, pursuing crime-control strategies of proven effectiveness and enacting needed policing reforms will be essential to achieving prompt yet durable reductions in violent crime in our cities.

May 25, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data | Permalink | Comments (0)

"The Power of Parsimony"

The title of this post is the title of this notable new report authored by Daryl Atkinson and Jeremy Travis as part of Columbia University’s Square One Project.  The whole report looks like a must-read, and here is the start and close of its introduction:

As our country comes to terms with the damage caused by our excessive reliance on punishment as a response to crime, the use of the criminal law to sustain racial hierarchies, and the ways the justice system has undermined our democracy and weakened communities, we must ask: what principles should guide this fundamental reexamination of a seemingly immovable status quo? In this paper we propose that the principle of parsimony — if re-considered while recognizing the historical racist underpinnings of the American criminal legal system — can provide a framework that serves as both critique of that history and an elevating aspiration for a reimagined approach to justice.

We begin with the classic formulation of the principle of parsimony: under traditional social contract theory, the state is only authorized to exercise the lightest intrusion into a person’s liberty interest that is necessary to achieve a legitimate social purpose.  Any intrusion beyond what is necessary is inherently illegitimate and may even constitute state violence. We define “liberty interest” as a person’s right to be left alone — free from harmful state intervention. Determining the extent to which any intrusion is necessary, ascertaining the legitimacy of the social purpose, and recognizing the value of beneficial state support require pragmatic calculations, but the power of parsimony lies in its emphasis on the primacy of the liberty interest and its limitation on state power....

We believe that a process of reckoning with the historical failures of the state to honor the social contract — and the role of the criminal law in that tragic history — can help facilitate the creation of a new vision of justice.  The principle of parsimony can support this ambition by requiring that our society affirm the centrality of individual liberty, limit the application of state power, come to terms with our history, and reconstruct our social contract to include those communities that have been excluded.  The vision of justice that emerges from rigorous application of these guiding principles would be grounded in human dignity, social justice, an honest understanding of our past, and vibrant community life.

We begin this paper by describing the history of the principle of parsimony, which has philosophical and jurisprudential roots.  We then apply the principle of parsimony to three aspects of criminal justice — prison sentences, collateral consequences, and solitary confinement — to demonstrate the analytical power of this framework.  We conclude the paper by suggesting that the principle of parsimony can be an integral part of the process of “reimagining justice” that is now underway in our country and lies at the heart of the Square One Project.  We believe that the principle of parsimony, as reinterpreted to require a reckoning, can make a uniquely powerful contribution to the current era as reformers, abolitionists, activists, legislators, and system stakeholders are bringing new energy and urgency to the challenge of creating a compelling vision for the future of justice in America.

May 25, 2021 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

May 24, 2021

Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel

As detailed in this website, candidate Joe Biden pledged to "Eliminate the death penalty" if elected.  But many months into his presidency, it appears that Prez Biden's Department of Justice is continuing to actively defend the application of the death penalty in at least on high-profile case.  Specifically, as detailed in this local article, tomorrow a Fourth Circuit panel will hear arguments on Dylann Roof's appeal of his conviction and death sentence with DOJ apparently seeking to defend that punishment.  Here are the basics:

Defense lawyers will advance arguments Tuesday on up to 20 issues in the U.S. 4th Circuit Court of Appeals in Richmond as to why Dylann Roof was wrongfully convicted and sentenced to the death penalty in 2017 after a weeks-long trial. They will ask the court to vacate both the conviction and the death penalty.

Those arguments will be countered by a team of prosecution appellate lawyers from the U.S. Department of Justice. They seek to uphold the conviction and sentence.

Roof, 27, who grew up in Columbia, was sentenced to death in January 2017 by U.S. Judge Richard Gergel after a jury found him guilty of 18 death eligible federal hate-crimes and firearms charges. In a subsequent proceeding to determine sentence, the same jury ruled Roof deserved the death penalty. Judge Gergel then pronounced the sentence.

Evidence at Roof’s trial, which included his own writings and selfie photos and videos, portrayed him as a self-described white supremacist who wanted to start a race war by killing African-Americans. To implement his plan, Roof traveled to Charleston in June 2015, entered a prayer meeting at an African American church and executed nine Black churchgoers, including beloved Democratic state Sen. Clementa Pinckney.

“Multiple issues arising from convictions for hate crime, religious obstruction, and firearms offenses resulting in death and from imposition of death penalty” will be considered, according to a description about the case on the Fourth Circuit’s web site.

Roof’s purported mental illness and inability to be his own lawyer — casting aside an active defense role by David Bruck, one of the nation’s most experienced death penalty lawyers — is a major feature of Roof’s defense....

“Though Roof’s mental state was the subject of two competency hearings, and five experts found him delusional—findings swiftly dismissed by the court, in its rush to move the case along—jurors never heard any of that evidence. Instead, prosecutors told them Roof was a calculated killer with no signs of mental illness. Given no reason to do otherwise, jurors sentenced Roof to death. Roof’s crime was tragic, but this Court (the 4th Circuit) can have no confidence in the jury’s verdict,” the defense brief on the case says....

Prosecutors will argue that Judge Gergel’s rulings in both the guilt or innocence, as well as the penalty, phases of the trial were correct. “(Judge Gergel) did not clearly err in finding Roof competent to stand trial. The finding was supported by expert testimony and was not arbitrary or unwarranted,” the prosecutors’ brief said. “Roof’s right to self-representation was correctly defined and properly protected.”

“No error occurred at the penalty phase,” the prosecutors wrote. “The death penalty was not plainly erroneous based on Roof’s age or mental condition. Finally, Roof’s convictions rest on sound legal and constitutional grounds.”

Interestingly, though this appeal is technically being considered by the Fourth Circuit, no Fourth Circuit judge will actually be hearing the appeal. The press article explains:

The judges on the panel are Judge Duane Burton of the 8th Circuit Court of Appeals; Kent Jordan of the 3rd Circuit Court of Appeals; and Senior Judge Ronald Gilman of the 6th Circuit Court of Appeals. Usually, judges on a panel are chosen from the full 4th Circuit, which has 15 judges. However, 4th Circuit Judge Jay Richardson of Columbia was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.

I welcome reader comment on the (interesting?) metaphysical question of whether an appeal in the Fourth Circuit heard by no Fourth Circuit judges is really a Fourth Circuit appeal.  (I also wonder if there will have to be an additional 12 judges appointed by designation in order to properly consider any en banc petition that might follow a ruling from this panel.)

A few of many prior related posts:

May 24, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

"Objective Punishment"

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

The article addresses the question whether the punishment, besides fitting the crime, should also fit the criminal.  A widely accepted principle of proportionality declares the worse the crime, the worse the punishment.  But how should punishment severity be measured? 

Specifically, when the severity of a punishment is being evaluated for the purpose of fitting the crime, should idiosyncratic features of the offender be taken into account?  Should a person suffering from claustrophobia get a shorter sentence because incarceration will be harder on him?  Should being assaulted while incarcerated result in a shorter sentence because the actual incarceration was more harsh than expected?  Should the foreseeable consequences of incarceration — losing a particularly high paying job or getting badly desired publicity — be considered in sentencing?

The article argues, contrary to some recent scholarship, for an “objective theory” of punishment, according to which such idiosyncratic features of offenders are irrelevant to the determination of the punishment deserved, but may be considered as part of multi-valued scheme for managing social resources generally.

May 24, 2021 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Lengthy lament in SCOTUS cert dissent about execution method litigation

The Supreme Court’s order list this morning has no cert grants and lots and lots of cert denials.  And, at the end, Justice Sotomator penned a lengthy dissent to one such denial concerning a Missouri inmate’s effort to contest the state’s execution methods.  This dissent, in Johnson v. Precythe, No. 20-287, is joined by Justices Breyer and Kagan.

Because I am caught up with some pomp and circumstance today, I will not have a chance to review this opinion closely anytime soon.  (But I do have time to note that there are precious few persons being intentionally executed by states these days while there are still lots and lots of persons dying in prisons and jails due to neglect and other less intentional causes.  I hope these other more frequent kinds of deaths in custody might get more attention from the Supreme Court before too long.)

May 24, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

May 23, 2021

Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

6a00d83451574769e20224df387165200bIn this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve.  Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:

The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases.  All three judges signed on to the result, and on balance it was a relatively conservative panel.  The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.

To understand the opinion, it is first necessary to understand the “safety valve” exception.  This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.

This last exclusion, based on criminal history, was at issue in Lopez.  Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve.  This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.  The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve.  So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum.  But is that what the provision means?  Apparently not, says the panel!  Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.”  And the plainest reading of three items connected by “and” is that the list includes all three.  So, reasoned the panel, to be excluded from safety valve you must have every item on the list.

The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.”  The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points.  So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A).  The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.

Only a small number of defendants meet all three criteria.  The Lopez opinion thus lets many more people avoid mandatory minimum sentences.  With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.  

Prior related post:

May 23, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Spotlighting how "death in prison" LWOP cases still get so much less attention than capital punishment

Way back in 2008, I lamented in an article, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," that all the "Supreme Court attention and constitutional scrutiny given to capital cases necessarily means less attention and constitutional scrutiny given to non-capital cases."  Though that article was particularly focused on SCOTUS dockets, regular readers know I have long fretted about the tendency of so many media, lawyers, advocates and legal decision-makers to give so much time and energy to very rare capital cases when there are so many other cases with so many other ugly sentencing realities that could benefit from more attention.

Over the last decade, mass incarceration and a range of other sentencing and punishment realities have thankfully garnered considerably more attention in so many quarters.  But I think there are still problematic imbalances in coverage and commentary and concern: for example, South Carolina's decision to bring back firing squads even though the state has not had an execution in a decade got lots of attention, while a Mississippi court's decision to uphold an LWOP sentence for marijuana possession has gotten far less attention.

Against this backdrop, I was pleased to see this new lengthy article in The Marshall Project under the headline "Life Without Parole Is Replacing the Death Penalty — But the Legal Defense System Hasn’t Kept Up."  I recommend this piece in full, and here are excerpts:

Life-without-parole sentences are steadily replacing the death penalty across the United States.  Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66% since 2003, according to The Sentencing Project, a nonprofit that advocates for shorter prison terms. 

By comparison, only 2,500 people nationally are on death row according to the Death Penalty Information Center; the number of new death sentences dwindled to 18 last year, as prosecutors increasingly seek life instead.  Executions are less popular with Americans than they used to be, according to Gallup, and are astronomically expensive to taxpayers.  In Dallas, the district attorney’s office says it asks for capital punishment only for egregious crimes where defendants present a continuing threat to society.

But as life without parole displaces capital punishment, the country’s patchwork system of public defense hasn’t kept up.  Only 11 states report having minimum qualifications for lawyers who represent impoverished people facing a lifetime behind bars, according to the nonprofit Sixth Amendment Center.  In Texas, there’s a continuing dispute over whether the standards for death penalty defense apply if prosecutors seek life without parole instead.

Most states have no rules, The Marshall Project and The Dallas Morning News found.  Someone just out of law school could handle a life-without-parole case in Illinois or Nebraska.  In California, where a third of the prison population is serving some form of life sentence, minimum qualifications apply only in death penalty cases; the state hasn’t executed anyone since 2006.  Other states have minimal standards. South Carolina requires just three years of experience in criminal law; Arkansas specifies that lawyers should have handled at least one homicide trial.

When it comes to life without parole, “the idea that you would treat these cases like you would treat other felonies is somewhat incomprehensible to me,” said Pamela Metzger, the director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.  “The sentencing stakes are so high and often irreversible.”  People facing life have far fewer chances to appeal than those facing capital punishment, and their cases draw far less scrutiny, she said....

Though thousands are serving life without parole for violent crimes such as homicide, courts in almost a dozen states have given hundreds of people that penalty for drug crimes.  Prosecutors have found that jurors are less squeamish about locking people up for the rest of their lives than about executing them. And life-without-parole trials cost thousands of dollars less than death penalty cases. They are shorter, involve fewer lawyers, allow limited appeals and often end in plea deals before trial....

“Prosecutors have gone wild with life-without-parole sentences -- but in particular counties and for particular marginalized people,” said Brandon Garrett, a Duke University law professor who wrote a book on the decline of capital punishment.  His study of North Carolina found that more than 60% of the prison population serving life without parole was Black.  Only 30% was White....

In 2003, the American Bar Association updated its guidelines for what lawyers should do for clients who face death sentences. Among other things, the guidelines say these lawyers should have extensive criminal trial experience and knowledge of death penalty case law and should hire investigators and mental health experts.  Some state legislatures and courts have adopted these standards, including Texas. But experts say enforcement is a problem.  And in almost every state, the standards don’t apply to life-without-parole cases. 

May 23, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

More notable new essays in Brennan Center's "Punitive Excess" series

I highlighted here last month a new essay series assembled by the Brennan Center for Justice, titled "Punitive Excess," in which "writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm."  The first three essays in the series were linked in this prior post, and now I see that these three additional essays have been added to the series:

May 23, 2021 in Recommended reading, Scope of Imprisonment | Permalink | Comments (2)