« June 20, 2021 - June 26, 2021 | Main | July 4, 2021 - July 10, 2021 »

July 2, 2021

Lots of recommended reading for a long weekend

A busy week has meant a lot of interesting stories and commentaries have piled up on my "to read" list.  Fortunately, I have a long weekend to catch up.  Here is a (only partial) list of pieces that seem worth checking out:

From the Albuquerque Journal, "It makes humane, fiscal sense to release nonviolent inmates"

From Business Insider, "4,000 Americans were sent home from prison during COVID. They repaired their lives, but now could be forced back to prison because of a ridiculous technicality."

From the Christian Science Monitor, "How race shaped the South’s punitive approach to justice"

From The Crime Report, "Time to End Crack-Cocaine Disparity Once and For All: Police Group"

From The Marshall Project, "Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say"

From The Marshall Project, "Lost Opportunity, Lost Lives: During the pandemic, prison officials could have prevented sickness and death by releasing those who were most vulnerable to coronavirus and least likely to reoffend — older incarcerated people."

From Newsweek, "The End of Mass Incarceration Is Within Reach"

From New York, "Progressives Don’t Need to Downplay Rising Homicides"

From the New York Times Magazine, "I Write About the Law. But Could I Really Help Free a Prisoner?"

From Politico, "Can Journalism Wean Itself Off the Cheap Clicks of Bad Crime Coverage?"

From the Texas Observer, "A Wrongful Execution in Texas Points to the Fallibility of the Death Penalty"

From the Washington Post, "What’s striking about Biden’s crime plan? It actually focuses on reducing crime."

From The Washington Times, "Building off the First Step Act"

July 2, 2021 in Recommended reading | Permalink | Comments (0)

New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

M_fsr.2021.33.5.coverIt strikes me as a great bit of great timing, as we head into a weekend celebrating our great nation's declaration of independence from a monarchy, that the new issue of the Federal Sentencing Reporter focused on the pardon power in the US Constitution is just now available online.  It is often said that the presidential pardon authority in Article II section 2 of the Constitution is the most "kingly" power given to our chief executive, and former Prez Donald Trump certainly seemed at times to bring a "mad King George" quality to his activities in this arena.  Notably, as explained in the intro to this June 2021 issue of FSR, the editors had some history and some expert help putting together a new issue on this always timely topic:

This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.

Here are the great new original articles in this great new FSR issue:

July 2, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

In final order list of of SCOTUS OT20, Justices grant cert on 924(c) matter and spar over summary reversal in capital case

Though we are now two days into July 2021, the US Supreme Court has delivered this morning a last jolt of October 2020 Term action with this lengthy order list that has a little something for all SCOTUS fans.  For starters, there are nine grants of certiorari.  The only criminal law grant is yet another debate over what qualifies as a "crime of violence" under federal statutory law.  This time the issue concerns application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor20-1459, which formally presents this question:

Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a).

In addition, there are lots of GVRs and statements concerning cert dispositions on free speech, religion, takings and qualified immunity issues.  But nearly half of the 54-page order list is consumed with a per curiam summary reversal and dissent in the capital case of Dunn v. Reeves20-1084 (S. Ct.  July 2, 2021).  Here is how the 12-page majority opinion starts (with cites mostly removed):

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road.  In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms.  Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability.  But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify.

The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably.  On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible.  In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel.  It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Federal habeas courts must defer to reasonable state-court decisions, 28 U.S.C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Justice Sotomayor authored a 14-page dissent joined by Justice Kagan. (Justice Breyer also dissented, but without opinion.) Justice Sotomayor dissent ends this way:

Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. See, e.g., United States v. Higgs, 592 U.S. ___ (2021) (emergency vacatur of stay and reversal); Shinn v. Kayer, 592 U.S. ___ (2020) (per curiam) (summary vacatur); Dunn v. Ray, 586 U.S. ___ (2019) (emergency vacatur of stay).  This Court has shown no such interest in cases in which defendants seek relief based on compelling showings that their constitutional rights were violated.  See, e.g., Johnson v. Precythe, 593 U.S. ___ (2021) (denying certiorari); Whatley v. Warden, 593 U.S. ___ (2021) (same); Bernard v. United States, 592 U.S. ___ (2020) (same). In Reeves’ case, this Court stops the lower court from granting Reeves’ petition by adopting an utterly implausible reading of the state court’s decision.  In essence, the Court turns “deference,” ante, at 7, into a rule that federal habeas relief is never available to those facing execution.  I respectfully dissent.

July 2, 2021 in Death Penalty Reforms, Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

July 1, 2021

"Attorney General Merrick B. Garland Imposes a Moratorium on Federal Executions; Orders Review of Policies and Procedures"

The title of this post is the heading of this notable new US Justice Department press release.  Here is the main text of the press release:

Today, Attorney General Merrick B. Garland issued a memorandum imposing a moratorium on federal executions while a review of the Justice Department’s policies and procedures is pending.

“The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely,” said Attorney General Garland. “That obligation has special force in capital cases.”

In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021.  That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital.  Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes, including:

  • A review coordinated by the Office of Legal Policy of the Addendum to the Federal Execution Protocol, adopted in 2019, which will assess, among other things, the risk of pain and suffering associated with the use of pentobarbital.
  • A review coordinated by the Office of Legal Policy to consider changes to Justice Department regulations made in November 2020 that expanded the permissible methods of execution beyond lethal injection, and authorized the use of state facilities and personnel in federal executions.
  • A review of the Justice Manual’s capital case provisions, including the December 2020 and January 2021 changes to expedite execution of capital sentences.

The Attorney General’s memorandum requires the reviews to include consultations with a wide range of stakeholders including the relevant department components, other federal and state agencies, medical experts and experienced capital counsel, among others.

No federal executions will be scheduled while the reviews are pending.

The Attorney General’s memorandum can be found at this link, and it provides a slightly expanded account for why this moratorium has been imposed and the inquiry to take place during this period.  Here is the notable "preamble" of this two-page memo:

The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely.  That obligation has special force in capital cases.  Serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases.  Those weighty concerns deserve careful study and evaluation by lawmakers.  In the meantime, the Department must take care to scrupulously maintain our commitment to fairness and humane treatment in the administration of existing federal laws governing capital sentences.

I am tempted to call these actions a "kick the can down the road" effort, but maybe some readers see more to this latest round of hand-wringing by yet another administration not really prepared to go "all in" on capital punishment abolition.

July 1, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Encouraging(?) update on prospects for series of small federal sentencing reform bills

Politico has this new piece on the the prospects for (small) statutory sentencing reforms making their way through Congress soon.  Both the headline and contents of the article are generally encouraging, though one is always wise not to expect much from Congress these days.  The piece, headlined "As police reform talks sputter, bipartisan criminal justice bills advance," should be read in full by federal sentencing fans.  Here are a few highlights:

Democrats don't want to borrow a thing from Donald Trump’s four years in power, with perhaps one exception: bipartisan criminal justice reform.  As police reform talks edge closer to collapse and Democratic priorities from gun control to immigration stall, the Senate is chugging ahead on an overhaul of the U.S. criminal justice system that advanced under Trump.  Senate Judiciary Chair Dick Durbin (D-Ill.) described criminal justice reform as a “personal priority” for himself and his GOP counterpart, Iowa Sen. Chuck Grassley....

House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.) said this week that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills ... to deal with the mass incarceration epidemic that we have in America and the over-criminalization problem which both Democrats and Republicans recognize as a challenge that must be decisively tackled."

Whether Republicans back criminal justice reform to the extent that they did in 2018 remains to be seen. The First Step Act, which included sentencing as well as prison reform provisions, passed the Senate with 38 GOP votes but only after many conservatives got on board following a personal appeal from Trump.  A potentially stronger deterrent than a Democrat in the White House, for some Republicans weighing this year's bills, is the current increase in violent crime.  "A bigger issue is the big rise in crime in the last year,” Grassley said in an interview. “I think that’s the biggest impediment, not because Trump’s not president.”  Durbin countered that the package he is working on with Grassley, a trio of bills, focuses on non-violent crime....

So far, the Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release.

But criminal justice reform advocates are pushing for the inclusion of more provisions in a larger package, especially legislation that would eliminate the sentencing disparity between crack and powder cocaine offenses. The Biden administration recently backed the bill, and Durbin's committee held a hearing on it last month that featured GOP Gov. Asa Hutchinson (Ark.), a former Drug Enforcement Administration chief, and Matthew Charles, the first person released from prison after the First Step Act passed in 2018.  The road to closing that crack-cocaine sentencing disparity, a longtime progressive cause, is a hard one....

Advocates are hoping to see further movement before Congress leaves for its scheduled August recess.  However, both Grassley and Durbin suggested that could be a heavy lift, given their limited days left in session and the intense focus on moving through both the bipartisan infrastructure deal and reconciliation.  Durbin said he is working to pass his bills by voice vote, but if that doesn’t work he will ask Senate Majority Leader Chuck Schumer (D-N.Y.) for floor time.  Grassley predicted that some time in the fall would be more likely....

As Congress enters the second half of the year, proponents of criminal justice reform are confident that some type of legislation will get through, given the ideological range of groups pushing for change.  “Each member, both Republican and Democrat, have very much an interest in it based upon inequities that have happened because of past tough on crime legislation,” Grassley said. “But something that really helps is when you have a broad coalition of the most liberal and the most conservative interest groups in the United States working together for it.”

Because there are many moving parts to the legislative proposals in play, and especially because of partisan divisions along with the fraught politics of crime, I fear that there could be many speed bumps on the way to congressional approval of even the small sentencing reform proposals that have so far advanced through the Senate Judiciary Committee.  But if there are enough folks on both side of the political aisle who remain eager to get something done in this space, and especially if the Biden Administration might be prepared to prioritize these issues after infrastructure discussions are resolved, I will be hopeful that we could see one or maybe more federal sentencing reform bills become law in 2021.  But I should close by repeating what I said at the outset, namely that it is always wise not to expect much from Congress these days.

Some of many prior related posts:

July 1, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

When might we expect appointments to a new — a truly new — US Sentencing Commission?

As the calendar turns to July, it seems a good time to express my frustration that we are now nearly six months into the Biden Administration and there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has been only somewhat functional for only a small portion of the last five years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff has completed lots of useful research and reports in the interim, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional in terms of formal amendments or agendas in recent years.

Of course, the federal sentencing system can and does march on without a fully functioning USSC.  But the lack of Commissioners is a significant lost opportunity for this significant agency to this particular moment.  When functioning well, the USSC can and should be part of a hearty and healthy dialogue with Congress and the Justice Department, especially when these political branches are interested in criminal justice reforms.  As I stressed in a recent post, "Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional," even small changes to the US Sentencing Guidelines by the USSC can have a huge impact on criminal justice practices and the federal prison population.  Moreover, as noted in this recent Bloomberg Law piece, headlined "Near-Vacant Sentencing Panel Gives Biden Chance for Fresh Start," the USSC these days could and should be thinking about a lot more than small guideline changes:

Six of seven possible seats on the U.S. Sentencing Commission remain empty, giving President Joe Biden an opportunity to remake the panel at a time when overhauling criminal justice is a rare example of bipartisan consensus....  In addition to taking up issues that have been unaddressed, a new set of commissioners could help review the decades-old sentencing guidelines wholesale to reflect a modern understanding of criminal justice, observers say.

“It is a great opportunity for the administration,” said Mark Osler, a law professor at the University of St. Thomas in St. Paul, Minnesota, who focuses on policy surrounding clemency, sentencing, and narcotics. “Because if you want a great shot at really creating reform in the federal system, the guideline commission is one place to start.”   And the bipartisan consensus on the need to overhaul sentencing gives a new commission “a chance to do things like simplify the guidelines,” Osler said....

During the 2020 presidential race, Biden’s campaign recommended tasking the Sentencing Commission with “conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges.”  

The guidelines were drafted 40 years ago at a time when the emphasis was on punishment rather than rehabilitation, said Nancy Gertner, a former federal district judge in Massachusetts and a senior lecturer at Harvard who teaches law and neuroscience and has written about sentencing.  Since then, the connection between the guidelines and mass incarceration is clearer and people have a better understanding of the science behind the issues that impact crime, such as mental health, she said.  “In my view, these are guidelines that need to be reexamined and reevaluated,” Gertner said.

Back in February, I wrote a commentary, "Reviving the U.S. Sentencing Commission," which noted that the USSC has historically been dominated by persons with prosecutorial backgrounds; I also lamented that the USSC now needs six new confirmed members to get back to full strength and at least three new commissioners to even be somewhat functional.  At that time, I did not reasonably expect to see needed nomination to the US Sentencing Commission until at least some Circuit and District Judge nominees were put forward.  But yesterday, Prez Biden announced his fifth round of judicial nominees.  The USSC, which is also in the judicial branch, needs to get appointments soon or there will be reason to fear we will not get confirmed Commissions in place until 2022 or even later. 

I especially hope the frustrating wait for nominations will be rewarded soon with some terrific nominees for the Sentencing Commission who will be committed to thinking big about how to make federal sentencing sounder.  Especially in light of the FIRST STEP Act and other national criminal justice developments, we need not just new US Sentencing Commissioners.  The country  could and would benefit from a truly new US Sentencing Commission committed not just to monitoring and managing the federal sentencing guidelines, but also to being a powerful advocate for humane, evidence-based sentencing systems throughout this great nation.  Notably, what I wish to imagine today is what Judge Marvin Frankel ably urged a full 50 years ago when he first set out his ideas for a "Commission on Sentencing" at the very end of Criminal Sentencing: Law Without Order:

The uses of a commission [should be as] to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of our state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion. 

A few prior recent related posts:

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

Texas completes only second state execution of first half of 2021

As detailed in this local article, Texas completed an execution last night just before the end of June.  Here are some details:

Texas executed John Hummel Wednesday evening for the 2009 murders of his family members.

Hummel, 45, was sentenced to death by a Tarrant County jury in 2011 after the slayings of his pregnant wife, his 5-year-old daughter and his father-in-law at their Kennedale home.  Police found their burned, beaten bodies in or near their beds after responding to an early morning fire, according to court records. Officials determined that they died by blunt-force injuries before the fire was set....

Shortly after 6 p.m., Hummel was escorted into the state's death chamber in Huntsville.  He was pronounced dead at 6:49 p.m., 13 minutes after he was injected with a lethal dose of pentobarbital, according to prison reports....

Hummel’s appeals — including a push last year to have the Tarrant County District Attorney’s Office taken off his case because his defense attorney at trial had become a leader in the prosecutor’s office — had been denied before Wednesday.

Last week, however, the American Civil Liberties Union of Texas sought to stop his execution because prison officials failed to let reporters witness a May execution for the first time in the history of the state's modern death penalty. Reporters for the Associated Press and the Huntsville Item, who attend every execution, were left waiting to be escorted from prison administrative offices across the street when Quinton Jones was killed. The same reporters were able to witness Hummel's execution Wednesday, Joseph Brown of the Huntsville newspaper, The Item, confirmed.

The Texas Department of Criminal Justice has said excluding the onsite reporters was a mistake, and has assured that media will be allowed in the future to observe as the state wields its greatest power over life.  The agency blamed new execution staff, a revised execution protocol and a lack of oversight, according to a TDCJ statement....

Nationwide, reporters have served as watchdogs in botched executions in states that struggle to find lethal injection drugs as capital punishment’s popularity wanes.  And Texas media reports often provide detail excluded from agency accounts of executions — like prisoners describing a burning sensation after lethal drugs are injected in their veins....

After the execution, Tarrant County District Attorney Sharen Wilson said in a statement that the death penalty should be reserved for the worst crimes. "John Hummel’s actions were unconscionable," she added.

Hummel’s execution, originally set for last March, was the first in the state to be taken off the calendar because of the coronavirus pandemic.  Texas has executed two people in the pandemic — Billy Wardlow last July and Jones last month. That’s an exceptionally low number for Texas, which leads the nation by far in executions.  Aside from Hummel, four other men’s executions were halted because of public health concerns.

So far, four other men are scheduled to be executed in Texas in 2021. Only one other execution in the nation is scheduled for 2021, in Nevada, according to the Death Penalty Information Center.

July 1, 2021 in Death Penalty Reforms | Permalink | Comments (1)

Latest online issue of NACDL's "The Champion" full of sentencing articles

April_2021I am pleased to see that the April 2021 issue of The Champion, a magazine/journal of the National Association of Criminal Defense Lawyers, is now online.  The cover calls this "The Sentencing Issue," and I have already had a chance to read a couple of the great pieces therein.  Here are some of the major article that can be found in this issue (which the brief descriptions provided on this NACDL page):

"Defense Lawyers Can ‘Rewrite’ the Sentencing Guidelines, One Case at a Time"

How can defense counsel obtain a sentence below the range recommended by the Sentencing Guidelines? The common approaches can be enhanced by two things that defense lawyers seldom use: the U.S. Sentencing Commission’s data on actual sentences and precedents “hidden” from standard legal search engines.

"Formulating and Presenting Effective Sentencing Arguments When Representing Cooperators"

When representing a cooperator, some defense lawyers tend to cede to the government three critical assessments that must be determined: the value of the information the cooperator provides, the cooperator’s relative worth as compared to others similarly situated, and the extent of the departure due under U.S.S.G. § 5K1.1. The authors describe the pitfalls lawyers should avoid when representing cooperators.

"The ‘3 Rs’ of Sentencing Storytelling"

Defense lawyers tell only three types of sentencing stories. These stories involve Revelation, Relativity, and Redemption. Understanding the “3 Rs” of sentencing storytelling will help the defense craft the strongest mitigation arguments and achieve better results for clients.

"The Perils of Parole and ‘Program Speak’: Understanding and Managing Culpability Statements in Post-Conviction Settings"

During parole board hearings, sometimes a client will use language indicating that he deserved a severe sentence for his crime. Clients learn this language while attending prison programs that subtly teach them to say what the parole board wants to hear. The client may use this language (“program speak”) even though he committed no crime. In doing this, however, the client may foreclose any future possibility of clearing his name. How can a defense lawyer mitigate such statements?

"Inside NACDL: NACDL’s Effort to Confront the Trial Penalty Gains Momentum"

NYSACDL Report Confirms Near Extinction of Trials in the Empire State. In March 2021, NACDL and NYSACDL released the trial penalty report. The report defines what practices are encompassed by the trial penalty, identifies the underlying causes, depicts it through profiles of individuals, and proposes concrete reforms to curtail the prevalence of the trial penalty.

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

"Sex Offender Registration and Community Notification Laws: An Empirical Evaluation"

The title of this post is the title of this new book of essays.  I reached out to the editors of this text to provide a bit of background and context for this new volume:

Sex offender registration and community notification (SORN) surely numbers among the most significant social control methods of the past several decades. Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach. 

Since its origin in the early 1990s, basic questions have existed regarding the effects of SORN, including whether it actually achieves its intended purpose of reducing sexual offending. Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding SORN.  As readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification.  The book promises to be an invaluable resource as policy-makers begin to consider whether SORN laws should be retooled or perhaps done away with altogether. Here is the SSRN link and abstract for the book:

Despite being in existence for over a quarter century, costing multiple millions of dollars and affecting the lives of hundreds of thousands of individuals, sex offender registration and notification (SORN) laws have yet to be subject to a book-length treatment of their empirical dimensions, examining their premises, coverage, and impact on public safety.  This volume, edited by Professors Wayne A. Logan and J.J. Prescott, assembles the leading researchers in the field to provide an in-depth look at what have come to be known as “Megan’s Laws,” offering a social science-based analysis of one of the most important and controversial criminal justice system initiatives undertaken in modern times. The editors attach the title page, table of contents, and preface of the volume.

July 1, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (0)

Hoping grandmothers and others on home confinement get compassionate consideration

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  There has been particular advocacy directed toward Prez Biden urging him to use his clemency powers to keep these persons from being returned to federal prison, and I have recently argued Congress could and should address this matter with a statutory fix.  But, critically, judges also might be able to grant relief on a case-by-case basis via sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

One person at risk of serving many more years in prison after success on home confinement, Gwen Levi, is getting particular attention because she seems like low-risk person who has already been re-incarcerated on the basis of a seemingly minor technical violation.  Here are just some of the stories discussing her plight:  

From The Root, " 76-Year-Old Black Woman Released From Prison Amid Pandemic, Sent Back for Missing Phone Calls While Taking a Class"

extraordinary and compelling reasonsFrom USA Today, "'Scared and confused': Elderly inmate sent home during COVID is back in prison after going to computer class"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

Upon hearing about this story, I expressed on Twitter my hope that Gwen Levi was pursuing a compassionate release motion.  Kevin Ring of FAMM informed me not only that she was, but also that he had submitted a letter in support of her effort to secure a sentence reduction.  Kevin recently sent me a copy of this letter and has allowed me to post it here:

Download ECF 2079 Kevin Ring letter in support of comp. release

Though I do not know all the facts surrounding the crimes and current circumstances of Gwen Levi and the 4000 other persons on home confinement at risk of going back into federal prison, I do know that these situations certainly seem to present "extraordinary and compelling reasons" to consider whether further prison time is needed.  

Some prior recent related posts:

July 1, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

June 30, 2021

"The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice"

The title of this post is the title of this notable new paper by Andrew D. Leipold that I just saw via SSRN. Here is its abstract:

Recent incidents of police violence have led to widespread reform efforts, from modest proposals to change police practices to dramatic attempts to slash funding or abolish the police entirely.  But largely ignored in the debate is a simple question — how well is law enforcement currently performing its core functions?  In particular, how good are the police at finding the perpetrator, arresting that person, and gathering enough evidence to start the matter through the criminal justice system?  Answering this question requires close attention to the familiar, but under-studied, metric of clearance rates.

Clearance rates measure the percentage of reported crimes that are “solved” by the arrest of a suspect and the filing of criminal charges.  But while these rates provide one valuable measure of police effectiveness, a closer look reveals both puzzles and qualifications, each of which raise important policy questions.  Using original compilations of data, this article begins by looking at the puzzles.  Clearance rates for violent and property crimes have been both quite low and amazingly steady for the last 40 years.  These figures are counterintuitive, because during that same period, crime first rose and then decreased dramatically; law enforcement personnel numbers increased, and then flattened; and the legal enforcement landscape appears to have tilted in the direction of the police and prosecution. E ach of these changes should have significantly affected the clearance rates, but even collectively, they did not.

The article then looks at possible explanations, and concludes that low and steady clearance rates are the product of relatively recent decisions about the role of police and the role of the justice system generally.  Beginning in the late 1990s, when our model would predict that clearance rates would begin to increase, resources were increasingly diverted from solving traditional violent and property crimes.  At the same time, a shift in law enforcement philosophy was gathering steam, one that prioritized crime prevention over crime clearance.  This choice was a sensible one, as most would prefer to have fewer crimes committed rather than a higher percentage of crimes solved.  But even these sensible choices have had important implications for crime victims, for criminal punishment schemes, and for the direction of police reform.

June 30, 2021 in National and State Crime Data, Who Sentences | Permalink | Comments (1)

Split Pennsylvania Supreme Court overturns Bill Cosby's convictions based on prior prosecutor's announcement of non-prosecution

In a high-profile setting, a split Pennsylvania Supreme Court has today ruled that it was a violate of due process for prosecutors to engage in what  one Justice describes as a "coercive bait-and-switch" concerning potential prosecution.  Because the defendant at issue is Bill Cosby, there is lots of media coverage of Pennsylvania v. Cosby, No. J-100-2020 (Pa. June 30, 2021) (all opinions available here).  The start of the majority opinion (which runs 79 pages) sets up the issue that is ultimately setting Bill Cosby free:

In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand had reported that William Cosby had sexually assaulted her in 2004 at his Cheltenham residence. Along with his top deputy prosecutor and experienced detectives, District Attorney Castor thoroughly investigated Constand’s claim.  In evaluating the likelihood of a successful prosecution of Cosby, the district attorney foresaw difficulties with Constand’s credibility as a witness based, in part, upon her decision not to file a complaint promptly.  D.A. Castor further determined that a prosecution would be frustrated because there was no corroborating forensic evidence and because testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence.  The collective weight of these considerations led D.A. Castor to conclude that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt.”

Seeking “some measure of justice” for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.  Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney’s declination and proceeded to provide four sworn depositions.  During those depositions, Cosby made several incriminating statements.

D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking.  The fruits of Cosby’s reliance upon D.A. Castor’s decision — Cosby’s sworn inculpatory testimony — were then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial.  We granted allowance of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth.

A few of many prior related posts:

June 30, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

June 29, 2021

Interesting split Fourth Circuit panel debate while upholding resentencing to 52 years for violent offenses by 15-year-old

A helpful reader made sure I did not miss the interesting discussion of sentencing practices and outcomes by a Fourth Circuit panel yesterday in US v. Friend, No. 20-4129 (4th Cir. June 28, 2021) (available here). The first paragraph of the majority opinion sets the terms:

Appellant Philip Friend, who actively participated as a fifteen-year-old juvenile in a series of violent carjackings, challenges the fifty-two-year sentence imposed by the district court after a remand in this case.  Our remand instructed the district court to give a more thorough explanation for its sentence, with the prospect that a more tempered sentence might also result.  United States v. Friend, 755 F. App’x 234 (4th Cir. 2018).  These things have now both come to pass. The offenses in question occurred long ago, but their consequences have been long lasting. Because the district court acted within its discretion in imposing the present sentence, we affirm.

And here is a key passage from the majority's extended discussion and the concluding sentiments of the majority (cites removed):

But to sum it up, it is clearly permissible for a sentencing court to weigh the gravity of the offense or the impact a defendant’s crimes have had on a community and to vindicate that community’s interest in justice.  That after all, is the reason a defendant is before the court.  An exclusive focus on one factor impermissibly vitiates the requisite individualized consideration.  On the other hand, for appellate courts to micromanage sentencings and demand a district court assign equal weight to each § 3553(a) factor would also disregard a sentencing’s individualized inquiry and toss our deferential abuse-of-discretion review to the winds.  Ultimately, defendant’s disagreement with the district court’s weighing of the sentencing factors is not enough to find the sentence procedurally unreasonable....

To find this sentence unreasonable would displace the discretion that district judges possess in setting sentences. We are a court of appellate review, not a panel of appellate sentencers. District courts are granted exceptional discretion in sentencing for a reason.  They view the full criminal tableau first-hand, and they weigh the conflicting evidence and competing arguments. Their choices are not easy. When a court abuses its discretion, it is this court’s duty to correct the error. But when a district court is responsive to our mandates and reasonably exercises its sentencing power, we must respect its judgment.  So we do here.

Writing in dissent, Judge Floyd explains at length why he sees matters differently. His opinion starts this way:

At the age of fifteen, Philip Bernard Friend and various members of his family committed a series of extremely serious crimes.  Nobody disputes the severity of those offenses or the irreparable harm that Philip visited upon the lives of his victims and their families.  But this appeal tests the legality of the district court’s imposition of a fifty-two year sentence on a juvenile offender.  Today, the majority declares Philip’s half-century sentence procedurally and substantively reasonable.  Because I cannot agree with the majority’s conclusion on either score, I respectfully dissent.

June 29, 2021 in Assessing Miller and its aftermath, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1)

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses"

Cover_CP-non-prodDespite only having a single commissioner, the US Sentencing Commissioner is continuing to produce interesting federal sentencing data and reports.  This latest USSC report, running nearly 100 pages, was released today under the titled "Federal Sentencing of Child Pornography: Non-Production Offenses."   This report drills into data from fiscal year 2019, and this webpage sets out these "key findings" from the report:

  • Facilitated by advancements in digital and mobile technology, non-production child pornography offenses increasingly involve voluminous quantities of videos and images that are graphic in nature, often involving the youngest victims.
    • In fiscal year 2019, non-production child pornography offenses involved a median number of 4,265 images, with some offenders possessing and distributing millions of images and videos.
    • Over half (52.2%) of non-production child pornography offenses in fiscal year 2019 included images or videos of infants or toddlers, and nearly every offense (99.4%) included prepubescent victims.
  • Constrained by statutory mandatory minimum penalties, congressional directives, and direct guideline amendments by Congress in the PROTECT Act of 2003, § 2G2.2 contains a series of enhancements that have not kept pace with technological advancements.  Four of the six enhancements — accounting for a combined 13 offense levels — cover conduct that has become so ubiquitous that they now apply in the vast majority of cases sentenced under § 2G2.2.
    • For example, in fiscal year 2019, over 95 percent of non-production child pornography offenders received enhancements for use of a computer and for the age of the victim (images depicting victims under the age of 12).
    • The enhancements for images depicting sadistic or masochistic conduct or abuse of an infant or toddler (84.0% of cases) or having 600 or more images (77.2% of cases) were also applied in most cases.
  • Because enhancements that initially were intended to target more serious and more culpable offenders apply in most cases, the average guideline minimum and average sentence imposed for nonproduction child pornography offenses have increased since 2005.
    • The average guideline minimum for non-production child pornography offenders increased from 98 months in fiscal year 2005 to 136 months in fiscal year 2019.
    • The average sentence increased more gradually, from 91 months in fiscal year 2005 to 103 months in fiscal year 2019.
  • Although sentences imposed remain lengthy, courts increasingly apply downward variances in response to the high guideline ranges that apply to the typical non-production child pornography offender.
    • In fiscal year 2019, less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range.
    • The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.
    • Non-government sponsored below range variances accounted for 42.2 percent of sentences imposed, and government sponsored below range variances accounted for 16.8 percent.
  • Section 2G2.2 does not adequately account for relevant aggravating factors identified in the Commission’s 2012 Child Pornography Report that have become more prevalent.
    • More than forty percent (43.7%) of non-production child pornography offenders participated in an online child pornography community in fiscal year 2019.
    • Nearly half (48.0%) of non-production child pornography offenders engaged in aggravating sexual conduct prior to, or concurrently with, the instant nonproduction child pornography offense in fiscal year 2019.  This represents a 12.9 percentage point increase since fiscal year 2010, when 35.1 percent of offenders engaged in such conduct.
  • Consistent with the key aggravating factors identified in the Commission’s 2012 Child Pornography Report, courts appeared to consider participation in an online child pornography community and engaging in aggravating sexual conduct when imposing sentences, both in terms of the length of sentence imposed and the sentence relative to the guideline range.
    • In fiscal year 2019, the average sentence imposed increased from 71 months for offenders who engaged in neither an online child pornography community nor aggravating sexual conduct, to 79 months for offenders who participated in an online child pornography community, to 134 months for offenders who engaged in aggravating sexual conduct.
    • In fiscal year 2019, offenders who engaged in aggravating sexual conduct were sentenced within their guideline ranges at a rate nearly three times higher than offenders who did not participate in online child pornography communities or engage in aggravating sexual conduct (44.3% compared to 15.6%).
  • As courts and the government contend with the outdated statutory and guideline structure, sentencing disparities among similarly situated non-production child pornography offenders have become increasingly pervasive. Charging practices, the resulting guideline ranges, and the sentencing practices of judges have all contributed to some degree to these disparities.
    • For example, the sentences for 119 similarly situated possession offenders ranged from probation to 228 months though these 119 possession offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 52 similarly situated receipt offenders ranged from 37 months to 180 months though these 52 receipt offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
    • The sentences for 190 similarly situated distribution offenders ranged from less than one month to 240 months though these 190 distribution offenders had the same guideline calculation through the application of the same specific offense characteristics and criminal history category.
  • When tracking 1,093 nonproduction child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.
    • Of the 1,093 offenders, 4.3 percent (47 offenders) were rearrested for a sex offense within three years.
    • Eighty-eight offenders (8.1% of the 1,093) failed to register as a sex offender during the three-year period.

June 29, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Post-Libby commutation developments, Sex Offender Sentencing | Permalink | Comments (1)

Federal plea deal on civil rights charges reportedly in the works for Derek Chauvin

This new local press piece, headlined "Derek Chauvin Closing In On Federal Plea Deal, Sources Tell WCCO," reports on an unsurprising but still interesting development in the legal sagas around George Floyd's killing.  Here are the details:

Multiple sources tell WCCO that federal prosecutors are in talks with former Minneapolis Police officer Derek Chauvin about a possible plea deal.  They say Chauvin is close to reaching a deal, and that is what he was likely referring to when he made a cryptic comment to the family of George Floyd during his sentencing last week.

“Due to legal matters, I’m not able to give a full formal statement … I give my condolences to the Floyd family, there’s gonna be some other information in the future that will be of interest and I hope these will give you some peace of mind,” Chauvin said prior to his sentencing.

Sources suggest Chauvin was likely referring to a plea deal in the federal case against him.  As part of a possible plea deal Chauvin would have to publicly explain what he did to Floyd and why.  That was, of course, the question that Floyd’s brother poignantly asked of Chauvin at the sentencing....

Sources tell WCCO that, as part of the plea, Chauvin could get a 20- to 25-year sentence, which he would serve at the same time as the state sentence, and that he would serve his time in federal not state prison....

Former Hennepin County Chief Public Mary Moriarity says Chauvin has to be thinking about the swift guilty verdict in the state case, and that may be giving him more incentive to try to negotiate a plea deal.  “That is because, in federal court, there would be a substantial difference between what he would receive if he went to trial and was convicted versus what he would get if he pled guilty, and as they say take responsibility for his actions,” Moriarity said.

It’s important to remember an earlier plea deal involving the feds in late May 2020 collapsed at the 11th hour.  The U.S. Attorney’s Office declined to comment, and WCCO also did not hear back from Ben Crump, the Floyd family attorney, or Eric Nelson, the attorney for Chauvin.

It is, of course, entirely right that Chauvin is far more likely to get a lower sentence (and to be able to cap his sentencing exposure) if he enters into a federal plea deal rather than going to trial on pending federal civil rights charges.  But, unlike in the Minnesota system where there is a strong presumption of release after a defendant serves 2/3 of an imposed prison term, in the federal system the norm is service of at least 85% of imposed prison time.  So if Chauvin's federal deal led to the imposition, say, of "only" a 20-year term, he should still expect to serve a full 17 years, whereas his 22.5-year prison term in the state system could lead to his release in "only" 15 years.

That said, this "release math" is only one part of the equation for Chauvin and his lawyers as they consider a federal plea deal.  I suspect Chauvin, for a variety of reasons, would much rather spend his considerable time in the federal prison system than in state prison.  Also, it is interesting to speculate whether and how a federal plea could impact any appeals Chauvin has planned for his state convictions and sentence.  And, not to be overlooked, there are distinct "second look" or "early release" mechanisms in state and federal systems that could prove significant in the future (which, in turn, makes them relevant now for plea negotiations).

Prior related posts:

June 29, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

June 28, 2021

Colorado Supreme Court rules mandatory lifetime sex offender registration violates the Eighth Amendment's prohibition on cruel and unusual punishment

A helpful reader made sure I saw an interesting ruling, handed down today by a 6-1 vote, from the Colorado Supreme Court in People in the Interest of T.B., 2021 CO 59 (Colo. June 28, 2021) (available here).  Here is how the majority opinion starts:

T.B. committed two sexual offenses as a minor — the first when he was eleven years old and the second when he was fifteen.  Because he was twice adjudicated delinquent for unlawful sexual behavior, the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S. (2020) (“CSORA”), requires T.B. to register as a sex offender for the remainder of his natural life.  Now an adult, T.B. seeks review of the juvenile court’s denial of his petition to deregister, arguing that CSORA’s mandatory lifetime sex offender registration requirement for offenders with multiple juvenile adjudications violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  We agree.

Mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before reaching adulthood.  But a wealth of social science and jurisprudence confirms what common sense suggests: Juveniles are different.  Minors have a tremendous capacity to change and reform.  As such, mandating lifetime sex offender registration for juveniles without providing a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the Eighth Amendment.  Accordingly, we affirm in part and reverse in part the judgment of the court of appeals and remand with instructions to order a new hearing on T.B.’s petition to deregister.

As the T.B. opinion notes, the Ohio Supreme Court has issued a similar ruling some years ago and top courts in Pennsylvania and New Jersey have found due process problems with mandatory juve sex offender registration.  As the T.B. opinion also notes, the Colorado General Assembly recently passed a bill to eliminate mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications, so the state likely will not have an interest in pursuing any appeal of this ruling.

June 28, 2021 in Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Updating the Buckeye State's progress creating a needed felony sentencing database

In a few posts at the start and end of last year, I flagged the work of some Ohio jurists in advocating for the development of a statewide sentencing database. See :A notable judicial pitch for better sentencing data in the Buckeye State" (from Jan. 2020) and "Making a great case for greater data to improve sentencing decision-making and sentencing systems" (from Dec. 2020).  Since then, work on, and debates over, such a database have picked up steam and also garnered some press attention:

From the Columbus Dispatch, "Can a spreadsheet improve fairness and justice in sentencing in Ohio courts? Some judges say yes"

From the Court News Ohio, "Justice, Judges Stand By Value Of Sentencing Database"

Also from the Court News Ohio, "New Platform Provides Path to Accessible Sentencing Data"

From The Plain Dealer editorial board: "Should Cuyahoga County run a pilot to show a criminal sentencing database can work?"

Here are excerpts from the the Dispatch article, which appears in today's papers, providing an update on the efforts:

Ohio Supreme Court Justice Michael Donnelly is spearheading a project to collect criminal sentencing data in a uniform way across courts.  And Chief Justice Maureen O'Connor is backing it as well.  "I've become convinced that this isn't just a good idea, it's an absolute necessity to deal with the problem of disparate treatment and implicit bias that permeates our sentencing laws," Donnelly said....

The goal is to be able see how similar cases compare county to county, court to court.  It isn't as simple as it sounds.  The courts operate with antiquated information technology systems. There isn't a uniform way that courts collect information.  Ohio has 723 elected judges across 88 counties — some of whom may be worried about what trends the data may show, Donnelly said....

Ohio is making some progress.  The Ohio Sentencing Data Platform project now has a template so courts can collect the same information in the same fields — a crucial early step for building a common database.  

Courts in Allen and Lawrence counties are testing the project and courts in Highland, Lake and Summit counties are scheduled to join in the coming months.  Courts in 11 other counties including Hamilton, Warren, Franklin and Stark are holding meetings about joining.

 The April 2021 issue of the Federal Sentencing Reporter, which is available online here, includes discussions of efforts to build out the Ohio Sentencing Data Platform.

June 28, 2021 in Data on sentencing, Detailed sentencing data, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Still more great new essays in Brennan Center's "Punitive Excess" series

highlighted here a few months a terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I am pleased to see that new essays are continuing to be added to the series now on a weekly basis, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

June 28, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Lots of criminal justice sound (and fury, signifying nothing?) in latest SCOTUS order list

The Supreme Court is apparently not going to issue the final opinions of the Term today, but it did issue this lengthy order list which has a number of interesting elements for criminal justice fans.

For starters, there is this per curiam summary decision in Lombardo v. St. Louis, with the majority reversing the decision to grant summary judgment on an excessive force claim against St. Louis and police officers who killed a disruptive suspect in a holding cell.  Justice Alito, joined by Justices Thomas and Gorsuch, complains that the majority "unfairly interprets the Court of Appeals’ decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the defendant police officers and the city of St. Louis."

Though Lombardo makes precedent, I am even more intrigued by Justice Thomas's decision to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US,  in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law. Here are excerpts:

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....

This disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Black & Galeazzi, Cannabis Banking: Proceed With Caution, American Bar Assn., Feb. 6, 2020.  Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a “drug trafficking crime.” 18 U.S.C. §924(c)(1)(A).  A marijuana user similarly can find himself a federal felon if he just possesses a firearm. §922(g)(3). Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Safe Streets Alliance v. Hickenlooper, 859 F. 3d 865, 876– 877 (CA10 2017) (permitting such a suit to proceed).

I could go on. Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’”  Raich, 545 U.S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Last but not least, in this nine-page dissent from the denial of cert in Hernandez v. Peery, Justice Sotomayor explains at great length why the Ninth Circuit was wrong to refuse to issue a certificate of appealability in a habeas appeal involving a claimed denial of the Sixth Amendment right to counsel.

June 28, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

June 27, 2021

Some clemency news and notes from (only) a few states

If there was lots of clemency action in lots of jurisdictions lots of the time, I might not consider a few grants by a few governors to be especially blogworthy.  But clemency action is still all too rare, so it notable to see clemency stories from a few states in one week:

From Florida, "Florida governor pushes through pardon for COVID-19 rule breakers"

From Kansas, "Kansas governor grants clemency to 8, embracing ‘political risk’ in rare use of power"

From Oregon, "Gov. Kate Brown commutes sentences of 41 inmates who helped battle historic wildfires"

June 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUSblog flags three notable new sentencing cert petitions

Last year around this time, I expressed my sense that it has been quite some time since the Supreme Court has taken up a really big and interesting sentencing case.  This post from near the end of last year's SCOTUS Term, titled "Do others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters?", captured this zeitgeist.  In the year since, we have gotten a few notable sentencing rulings (on juve LWOP in Jones and on ACCA predicates in Borden, but these decisions are more clarifications than game-changers.

I review these broad realities not just because we are approaching the close of another SCOTUS Term, but also because SCOTUSblog has this new post spotlighting three new cert petitions that could each lead to a significant sentencing ruling.  Here some details from a post worth reading in full:

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the use of acquitted conduct in sentencing decisions, when a sentencing court must consider a defendant’s juvenile status as a mitigating factor, and compassionate release under the First Step Act.

According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” While the jury considers whether conduct is proven beyond a reasonable doubt, relevant conduct for sentencing purposes need only be proven to the judge by a preponderance of the evidence and can include acquitted conduct. In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial.  While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions.  Osby asks the justices for their review to decide whether the practice is unconstitutional.

Next, in Sanders v. Radtke the justices are asked to consider the impact of juvenile status on sentencing decisions.  The petitioner, Rico Sanders, was convicted of multiple rape and assault charges at the age of 15 and sentenced to 140 years in prison with the possibility of parole at age 51. Sanders maintains that the Eighth Amendment and prior precedent required the sentencing court to consider his youth as a mitigating factor. He argues that the principle requiring sentencing courts to consider youth as a mitigating factor applies to life sentences with the possibility of parole in the same way it applies to life sentences without any possibility of parole. The petition further alleges that Sanders’ youth was used as an “aggravating factor” by the sentencing court, and he seeks the court’s review to clarify the circumstances under which a defendant’s youth must be considered as a mitigating factor.

Finally, Bryant v. United States presents a question regarding the compassionate-release provision of the federal criminal code, as amended by the First Step Act of 2018....  In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement [by the USSC]. Further, the government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion based on the reasons given by the government, and the U.S. Court of Appeals for the 11th Circuit affirmed.  Bryant argues that the decision created a circuit split, in direct conflict with eight other circuits, over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions.  He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

These three cases will not be fully briefed until later this summer, and so we likely will not know about possible grants until the Fall when SCOTUS returns to action for OT21.  If the Justices were to decide to take up even one of these issues, that would be a big sentencing deal.  I highly doubt the Court will take up all these issues, but I think the circuit split behind Bryant makes it a pretty likely grant and I hope some of the newer Justices might be eager to take up the issue in Osby.  After Jones, I think the Sanders case may be the longest shot (but, given recetn history, perhaps we should just assume the odds are long on all of these).

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

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)