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July 10, 2021

"Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives"

The title of this post is the title of this notable new paper authored by Olwyn Conway now available via SSRN. Here's the abstract:

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system.  This insulates the criminal system’s racially disparate outcomes from scrutiny, thereby precluding reform.  Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system.  After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment that demands and necessitates transformative proposals that call on prosecutors to reject the myth of colorblindness and adopt a race-conscious approach to criminal prosecution.  This creates an opportunity — and need — to generate and articulate specific and innovative frameworks to change the culture of prosecution.

This Article seeks to provide one such framework by examining the ethical duties of American prosecutors in the underexplored area of prosecutorial storytelling.  This Article focuses on trial narratives as a lens through which to view the ethical duties of the prosecutor writ large, arguing that trial narratives that advance or invoke a racialized stereotype or stock story violate the prosecutor’s duty to justice.  A race-neutral or “colorblind” approach to prosecution ignores the ethical violations inherent in racialized prosecutorial storytelling. By contrast, a color-conscious approach offers prosecutors a path to address the systemic racism that pervades every aspect of the American criminal system—including the stories that prosecutors tell.

July 10, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

July 9, 2021

New Urban Instititute report reviews "Implementation of the First Step Act: The Risk and Needs Assessment System"

Julie Samuels and Emily Tiry of the Urban Institute have this notable new 23-page report about one aspect of FIRST STEP Act implementation.  Here is its abstract:

The December 2018 First Step Act sought to address many long-standing problems in the federal prison system.  This brief focuses on implementation of the act’s risk and needs assessment system, intended to incentivize people in federal prison to pursue recidivism reduction programming that can sometimes reduce their time behind bars.  We summarize that system’s key requirements and major takeaways so far; detail the progress and challenges encountered in developing and implementing the risk assessment tool, needs assessment process, and earned time credits; and offer recommendations for improvement including suggestions to expand eligibility for early release or transfer and to consider the equity of the risk assessment tool.  We conclude that the US Department of Justice and the Federal Bureau of Prisons (BOP) could take a more vigorous approach to implement the law and fully realize the potential of the risk and needs assessment system to reduce recidivism and time spent in federal prisons.

Are you listening, DOJ and Congress? We are getting closer to a full three years since the FIRST STEP Act became law, and its implementation remains shaky and lots more could be done to make this first step even more consequential and impactful.

July 9, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Safety, Crisis, and Criminal Law"

The title of this post is the title of this notable new paper authored by Jenny Carroll and now available via SSRN.  Here is the abstract:

Concepts of safety and prevention of danger pervade the criminal law canon.  Arizona is no exception.  The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger.  The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.  The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.  On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.

None of this is unusual or surprising.  Criminal law has long claimed the joined realms of safety and protection as its own. The narrative of these concepts, however, is deceptively complex.  Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive.  Who warrants protection and how that protection is realized is obscure; — its precise calculation a mystery.  Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of danger not by what they are, but by what they are not.  The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation.  These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation. Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly. In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing.  For their part, those who live under the law — informal actors — may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.  This uses lessons from the COVID-19 pandemic and the response to George Floyd’s death to re-imagine these discretionary moments.

July 9, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

July 8, 2021

District Judge cites "severe remorse" among reasons to give Michael Avenatti (way-below-guideline) sentence of 30 months in federal prison

This NBC News piece reports that "Michael Avenatti, the brash attorney who had been a leading foe of then-President Donald Trump, was sentenced Thursday to 30 months in prison for a brazen, botched scheme to extort athletic apparel giant Nike out of up to $25 million." Here is more about this high-profile sentencing:

That sentence was much lower than the nine years that was the bottom of the sentencing range suggested by federal guidelines, and not anywhere close to “a substantial” prison term sought by federal prosecutors for the California lawyer.

“I alone have destroyed my career, my relationships and my life. And there is no doubt I need to pay,” Avenatti, 50, tearfully told Manhattan federal court Judge Paul Gardephe before he was sentenced. “I am truly sorry for all of the pain I caused to Mr. Franklin and others,” Avenatti said, referring to his former client Gary Franklin, an amateur basketball coach.

Avenatti’s sentencing came more than three years after he gained widespread fame, and infamy, for his bombastic representation of porn star Stormy Daniels, who received a $130,000 hush money payment from Trump’s then-personal lawyer Michael Cohen before the 2016 presidential election to keep her quiet about claims she had sex with Trump years before he ran for the White House.

Daniels is one of several former Avenatti clients that he is charged with swindling in two other separate federal prosecutions, one of which is due to begin next week in California.

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon. Avenatti’s lawyers had asked for a sentence of just six months....

At his trial next week, Avenatti is accused of crimes that include defrauding clients out of millions of dollars. One of those clients was a mentally ill paraplegic. Avenatti next year is due back in Manhattan federal court to be tried on charges related to allegedly swindling Daniels, out of $300,000 in proceeds for a book she wrote.

July 8, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8)

Another notable round of new Quick Facts publications from US Sentencing Commission

In a number of prior post, I have praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). This is another such post intended to flag these newest publications:

July 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

"Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices"

Crim12275-fig-0007-mThe title of this post is the title of this important and impressive new empirical federal criminal justice research just published in Criminology and authored by Mona Lynch, Matt Barno and Marisa Omori. Here is the article's abstract:

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

This article includes a data set of over 300,000(!) federal drug cases, and the findings are extremely rich and detailed. I have reprinted one of many interesting charts above, and here is the article's concluding paragraphs (without references):

Recent developments call into question whether the existing workgroup dynamics in the federal system that we have documented here — with prosecutors generally pushing for more punitive outcomes, and judges and defense attorneys acting as a counter to this punitiveness — are likely to persist in the future.  Although there was bipartisan Congressional support for the First Step Act, suggesting that the late twentieth-century punitive policies may continue to wane in appeal, the federal criminal system has also undergone significant change, particularly in the judiciary where lifetime appointments prevail.  The Trump administration was extremely active in appointing new judges to existing vacancies, and as a result, nearly a quarter of active federal judges were appointed during his presidency.  Given the conservative political leanings of many of these judges, it is fair to question whether these judges might in fact oppose a move toward less punitive practices among federal prosecutors.

Even if the Biden administration is successful in scaling back punitive policies and installs U.S. Attorneys who are in ideological alignment with such reforms, prosecutorial power is not limitless in determining case outcomes.  Under advisory guidelines, judges have considerable power to sentence above the guidelines, as long as it is within the generous statutory limits that characterize federal criminal law.  In the face of this possibility, federal prosecutors may opt to exercise their most powerful tool—the discretionary decision to file charges, or not.  Thus, should the dynamics shift to where the current roles are reversed, prosecutors could come to rely on their discretion not to charge in those drug cases where they seek to eliminate the chance that those potential defendants receive long sentences.  In any case, as our results suggest, we should expect that any potential future conflicts among federal prosecutors and judges are likely to play out differently across different court contexts, depending on the conditions and make-up of each local district.

July 8, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.

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It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (11)

July 7, 2021

"When Will Joe Biden Start Using His Clemency Powers?"

The question in the title of this post is the headline of this lengthy New York magazine article by Zak Cheney-Rice.  The obvious answer, of course, is "not soon enough," given that Prez Biden has gone his first six month, amid a global pandemic after campaigning as a reformer, without a single act of clemency.  But the piece strikes a slightly more hopeful tone, and here excerpts: 

According to the New York Times, the Biden administration has signaled, as recently as this summer and in multiple conversations with advocates, that he would use clemency both broadly and soon, with an emphasis on advancing his racial justice agenda.  This is significant ... because over the last several decades, presidents have been using their clemency powers less often, waiting until later in their presidencies to do so, and leaving people in squalid and dangerous conditions for longer periods of time because of it....

In the waning days of Donald Trump’s presidency, his administration issued a memo saying the thousands of people who’d been released from federal prison to home confinement during the “pandemic emergency period” would be locked up again as soon as the order was lifted, if their sentences weren’t up by then.  According to the Times, this is still in effect, and the Biden administration has been weirdly cagey about whether it would reverse Trump’s order and let them stay home.  These 4,000 prisoners are pre-selected and already free, so they’re easy candidates for commutations. The White House reviews the emergency declaration every three months.  None of these reviews has yielded answers so far, and the next one is scheduled for July.

This situation is shaping up to be a test of Biden’s ambitions regarding clemency.  There’s no concrete reason to think the president won’t make good on his promise to use clemency more than has become normal, but that’s mostly because the bar is so low.  Since Richard Nixon was president — a useful marker here, because that’s when the era of mass incarceration started — there’s been a fairly steady downward trend in presidents’ use of this unique power, which is granted to them by the Constitution, and which entails mostly commutations (which partly or completely cut short sentences) and pardons (which essentially wipe out convictions).

Nixon granted clemency to 926 people.  Trump granted it to 237, bookending a period of more than 50 years, starting with Ronald Reagan, that saw the numbers drop below 500 and stay there, with one exception, through the present day.  (With the caveat that this period has seen two one-term presidents, Democrats have usually been more willing to use this power than Republicans, but not by much. )  The one exception was Barack Obama, who granted clemency, mostly in the form of commutations, to 1,927 people, the most since Harry Truman.  As of July 1, 2021, there were still 153,683 federal prisoners.

Biden has hinted that he’ll start sooner rather than later, possibly even before the 2022 midterms, which is a big deal because of the politics surrounding the issue.  The American antipathy toward clemency is one of the main motivators behind the downward trend in pardons and commutations: The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity. To minimize the political fallout, they usually wait until late to start granting the bulk of them.  Oftentimes, like in Trump’s case, most get rushed through during a president’s last days in office.

The effect is that clemency has become really unusual.  And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.  There have, of course, been good reasons to monitor presidents’ clemency decisions. Trump used it to reward imprisoned cronies and mislead voters.  Bill Clinton famously pardoned the husband of a wealthy Democratic donor.  But the scrutiny is overwhelmingly due to its rarity, not its infrequent abuses.  It’s been fashioned into an almost cosmically precious blessing to those who receive it, rather than a workaday part of a president’s duties.

Plenty of ideas have been floated about how to change this on a systemic level.  Rachel Barkow, a law professor of New York University, has spent years researching and developing ideas for how to make clemency more common, in part by making it less politically perilous and less vulnerable to conflicts of interest.  Both of these goals probably mean removing such decisions from the purview of the Justice Department, where they’re mostly handled today.  Federal prosecutors are responsible for these people being in prison in the first place.  Their decisions — which often determine which petitions get to the president, for example — inevitably run up against the fact that they’re often undermining, and potentially reversing, their own work.

To reduce the political risk, Barkow suggests establishing a clemency board, composed of interests from across the political spectrum, and spanning a wide range of people who work, have worked in, or have been impacted by the criminal legal system, to process requests and seek out candidates.  This would spread out responsibility enough to take the weight off any one person, thereby encouraging more commutations and pardons, especially for someone like Biden, who says he wants to grant them.  (Several states already have boards like this in place. Barkow, citing her research and others’, describes them as a “necessary precondition” where clemency is routine.)

Whatever the route, two things are clear about Biden’s plan so far: he hasn’t done anything yet, despite his signaling, and people close to him have indicated to the Times that he’s “not inclined to circumvent” the Justice Department — meaning he’s probably committed to an approach that preserves conflicts of interest and retains more political calculation than it needs to.  This is bad for normalizing clemency.  The president couldn’t end mass incarceration or even make a major dent in it, even with a more proactive strategy — the federal incarcerated population is too small as a portion of the whole, for one. But he can wield clemency symbolically, telegraphing to federal prosecutors which cases are worth pursuing, for example.  And in more practical terms, he can spare as many people as he can from what is functionally a life of terror, torment, and uncertainty, and can do so now and regularly moving forward to prevent needless suffering.

Jails and prisons are scary and often life-annihilating places, even in non-pandemic times, and there are untold numbers of people who shouldn’t be there.  Immediate fixes, though small, are available.  The longer Biden waits and the rarer presidential clemency stays, the more unusual it will continue to be.

A few prior recent related posts:

July 7, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

ACLU sues Maricopa County prosecutors over expressly threatening "substantially harsher" plea offers for those who exercise court rights

As detailed in this ACLU press release, "the American Civil Liberties Union and the ACLU of Arizona filed a federal class action lawsuit challenging the Maricopa County Attorney’s Office (MCAO) policy of making plea offers 'substantially harsher' if people assert their rights to a preliminary hearing or a trial." Here is more about this notable lawsuit from the press release:

This "retaliation policy" coerces thousands of guilty pleas per year and violates the Constitution. Moreover, the retaliation policy applies regardless of the facts of any case, or even if the person might be innocent. Prosecutors also refuse to disclose any information beyond police reports — even if they have it — unless people give up their rights. In emails to public defenders, Maricopa County prosecutors openly acknowledge that one purpose of the policy is to avoid the work of reviewing evidence and preparing for trial.

MCAO enforces its retaliatory plea policy in the Early Disposition Courts (EDCs).  These EDCs were initially created to quickly move cases involving minor offenses or drug possession through the system, with the stated goal of helping people in need of drug treatment and other services avoid convictions.  It is during the EDC process that prosecutors threaten people with retaliation for exercising their rights and present people with a devastating choice — either waive your right to a probable cause hearing and accept the first guilty plea, all without access to the evidence against you, or MCAO will make any later plea “substantially harsher.”...

Plaintiffs include a 34-year-old man who felt threatened by MCAO’s retaliation policy and felt he had no choice but to waive his right to a preliminary hearing in order to get more discovery.  Another Plaintiff is a 61-year-old man with a substance use disorder who was charged with selling $20 worth of drugs.  Despite EDC’s stated purpose — to divert drug offenders away from incarceration and toward treatment — MCAO prosecutors are seeking to send him to prison for almost 10 years.  And the offer will get “substantially harsher” if he affirms his rights.  The complaint also details the story of a man who was actually innocent of his charges, but MCAO tried to pressure him into a guilty plea anyway.

This lawsuit, which seeks class certification and injunctive relief, is captioned Luckey v. Adel and the complaint can be found at this link.

July 7, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

July 6, 2021

Reviewing realities of life imprisonment around the globe

The Economist has this effective lengthy article about life imprisonment around the world under the headline "As the death penalty becomes less common, life imprisonment becomes more so." I recommend the full piece, and here are excerpts:

Lifelong imprisonment seems to be spreading as a punishment for the worst crimes.  In 2019 Serbia passed “Tijana’s law” in response to the rape and murder of a 15-year-old girl.  It allows judges to sentence some murderers and rapists of children to life in prison without parole.  In June last year, after the gang rape of a 13-year-old girl by soldiers, Colombia overturned its constitutional ban on life sentences.  Britain’s government recently proposed legislation to reduce the age at which judges can impose “whole-life” sentences from 21 to 18.

The most heinous crimes are rare, but the world’s population of lifers is large and probably growing.  According to the World Prison List the population of inmates rose by 20%, to 10.4m, from 2000 to 2015. Meanwhile between 2000 and 2014 the number of people serving life sentences worldwide rose by 84%, to 479,000, according to “Life Imprisonment”, a recent book.  America held 40% of them, and more than 80% of those have no prospect of parole.  The Sentencing Project, a think-tank in Washington, DC, reckons that the number of Americans serving life sentences without parole rose by two-thirds, to 56,000, between 2003 and 2020. Turkey, India and Britain also lock up a lot of people for life.  South African jails hold nearly 17,000 lifers, up from 500 in 1995.  In 2014 some sort of formal life sentence was on the books of 183 countries and territories....

Opponents of life without parole hope to repeat the success of campaigners against capital punishment. Since 1976 more than 70 countries have abolished the death penalty.  The number of executions worldwide in 2020 fell for the fifth year running to its lowest in a decade, says Amnesty International, a human-rights group. In America just 17 people were executed last year.  If campaigners have their way, life sentences will be the next sort to be branded cruel and rendered unusual.

Making this case is not simple.  For one thing, life-sentencing regimes vary enormously.  Some are relatively lenient, as in Finland, where few “lifers” spend more than 15 years in prison.  Others are staggeringly harsh.  Some American states still lock up juvenile offenders for life. China imposes the sentence on corrupt officials.  Australia and Britain do so for drug offences.  Life with a chance of parole may not be much better than without it if parole is granted rarely.  Life sentences can be disguised as indeterminate or very long fixed-term sentences.  El Salvador, which does not impose life sentences, can lock people up for 60 years....

Some campaigners use the courts to curb life sentences.  A clutch of treaties prohibit governments from inflicting degrading treatment on anyone, including prisoners. In 2013 the European Court of Human Rights (ECHR) ruled that offenders have at the outset of their sentences a right to hope for eventual release. The International Criminal Court says after 25 years sentences must be reviewed.  “Twenty-five years is increasingly established in international law as the maximum minimum,” says Dirk van Zyl Smit, Ms Appleton’s co-author....

Malawi may become a model for countries seeking to avoid simply replacing capital punishment with life sentences. After its High Court struck down the death penalty as mandatory for murder in 2007, the top appeal court ordered that more than 150 condemned prisoners be resentenced. (In practice, all were serving life, since Malawi has executed no one since 1992.) It directed judges to consider the circumstances of each to determine whether the death penalty should be upheld, converted to life or to a shorter sentence....

Of the prisoners who have been resentenced, one was handed a life sentence but more than 140 have been released after completing shorter prison terms.  To prepare the way, workers on the project fanned out to villages to explain what the ex-cons had endured and to find out whether they would be welcomed back.

July 6, 2021 in Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Gwen Levi, face of federal home confinement cohort at risk of prison return, granted compassionate release

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.  In this recent post, I noted one person at risk of serving many more years in prison after success on home confinement, Gwen Levi, who was getting particular attention because she had already been re-incarcerated on the basis of a seemingly minor technical violation.

I expressed hope in that post that she might succeed with sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  I am now happy to be able report that she has prevailed on such a motion, as detailed in this USA Today article headlined "Woman who was arrested after missing officials' phone call while in computer class is headed home":

An elderly woman who was recently arrested after she missed phone calls from officials while attending a computer class — a possible violation of her home detention — is headed back home following a federal judge's decision to grant her request for compassionate release.

In a four-page ruling Tuesday, U.S. District Judge Deborah C. Chasanow said "it would do little" to force Gwen Levi – a 76-year-old who's in remission from lung cancer and whom the Justice Department had deemed nonviolent – to serve the entirety of her sentence. "During her incarceration, she took many courses, worked, and completed drug education," Chasanow wrote, noting Levi's age, medical conditions and lack of major disciplinary problems.

Levi is among the more than 24,000 federal prisoners who, under the Trump administration, were allowed to serve their sentence through home detention to slow the spread of COVID-19 behind bars. But a Justice Department memo issued in the final days of the Trump administration said inmates whose sentences will extend beyond the pandemic must be brought back to prison. That included Levi, who has four years left to serve, and about 4,000 other prisoners, some of whom have secured jobs and gone back to school....

More recently, Levi attracted media attention after a trip to a computer class led to her arrest. Levi believed she had been approved to go to the class, her attorney said. She had turned her phone off, unaware that officials at her halfway house would be calling her several times. Levi was arrested four days later. A Bureau of Prisons report called the incident an "escape."

Levi was serving more than 30 years for drug conspiracy charges. Her sentence was reduced to 24 years as part of the First Step Act, a Trump-era criminal justice bill that shortened punishments for nonviolent drug crimes. Before her arrest last month, Levi had been on home confinement for 13 months.

In her ruling granting the request for compassionate release, Chasanow said Levi "has done well on home confinement," notwithstanding the incident that led to her arrest.

In a statement following Chasanow's decision, Kevin Ring, president of Families Against Mandatory Minimums, said: "Sending her back to prison for going to a computer class was shameful. She deserves to be home," Ring said. "But the fight is far from over. It's time for the Biden administration to ensure that the 4,000 people on home confinement get to stay home with their families, too."

Advocacy groups have been urging the Justice Department to rescind the Trump-era legal memo, but the administration does not believe the issue is urgent. The Justice Department said in May that inmates with years left to serve are not likely to be sent back to prison anytime soon because the public health crisis is expected to last for the rest of the year.

Some prior recent related posts:

July 6, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (0)

"The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform"

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

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system.  The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration.  Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted.  Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health.  In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.

July 6, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0)

July 5, 2021

Asking hard (but incomplete) questions about electronic monitoring as an alternative to prison

I am glad to see that NBC News has this lengthy new article about electronic monitoring under the headline "Incarcerated at home: The rise of ankle monitors and house arrest during the pandemic." Unfortunately, the piece only scratches the surface concerning how the pandemic may have enduringly altered sentencing practices and the pros and cons of greater reliance on home confinement with electronic monitoring. I still recommend this piece, but I hope future coverage will gather more data and dig even deeper into  pandemic-era experiences on this important topic. In the meantime, here are excerpts from this lengthy NBC News piece:

During the pandemic, as jails raced to release incarcerated people because prisons became coronavirus hot spots, many judges nationwide responded by putting those who were being released in electronic ankle monitors that tracked their movements 24 hours a day.  Other people were assigned ankle monitors as an alternative to bail as they awaited trial in a backlogged court system that moved online.

Now, early data shows how much the use of electronic ankle monitoring rose nationwide during that time, according to research from Kate Weisburd, a law professor at George Washington University and a former juvenile defender. Researchers are finding that ankle monitors are keeping people connected to the prison system longer than ever, as more remain strapped to the devices for over a year.

“Everyone is looking for ways of getting people out of custody, which obviously is a good thing,” Weisburd said. “But what's happening in some jurisdictions in the adult system is that more and more people are being released on monitors as a response to decarceration.”

In Chicago, the Cook County Sheriff Office's use of ankle monitors for adults who are awaiting trial jumped from 2,600 people in April last year to over 3,500 in December, according to data from the Chicago Appleseed Center for Fair Courts, a research and civil liberties group that advocates to improve court processes and find alternatives to incarceration. Chief Adriana Morales of the sheriff’s office said in a statement that electronic monitoring is always court-ordered and confirmed that during Covid-19 there’s been a “dramatic increase” in orders for them.

Law enforcement departments that use electronic monitoring say the devices are supposed to serve as an alternative to incarceration and help people remain in their community rather than serving time in jail.  But interviews with people who have been incarcerated and then placed on ankle monitors and researchers who study recidivism say the surveillance devices hurt people trying to get their life on track after prison and that there’s no evidence the technology is rehabilitative.  They often drag adults and youth even deeper into the criminal justice system and sometimes back behind bars....

Law enforcement experts find that ankle monitors seem to work best for a targeted population, like adults who are found to be at high risk to reoffend, said Kelly Mitchell, executive director of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota. “But for your average drug and property offenses, it’s not a good use at all.”

Mitchell said electronic monitoring can be helpful from a probation officer’s perspective when keeping track of individuals who have committed more serious offenses or violent crimes but would still benefit from being taken out of the jail system. “Electronic monitoring can provide a little bit of extra something to monitor that person for a period of time if we decide that we’re ready to give them a chance in the community,” Mitchell said.

Ankle monitors were first developed by social psychologists in the 1960s in an effort to offer positive reinforcement to juvenile offenders.  They came into use by the justice system in the 1980s and early 1990s.  While they still offer the upside of an alternative to prison or jail, they have in recent years become the focus of growing skepticism — particularly as their use has widened.  Advocates for criminal justice reform say that while ankle monitors may appear preferable for people who hope to get out of jail sooner, they don’t address systemic issues that land so many people behind bars.

“We're not putting resources into their communities to address the issues of violence, to address the issues of unemployment and poverty and structural racism,” said James Kilgore, an author and activist with the Challenging E-Carceration project at the Center for Media Justice. “Instead we’re going to slap this thing on them so we can track them, and we can keep them locked up in their house.”...

Though electronic monitoring is cheaper for municipalities and states than jail, the cost of the surveillance device is often passed on to the people wearing them.  And during the pandemic, when millions of people lost their jobs and unemployment benefits were backlogged, that cost added up.  In at least 30 states, agencies require those who are placed in an electronic monitor to pay between $2 and $20 a day to wear one, not including activation fees that some counties tack on, according to Weisburd’s research.... 

While the cost of incarceration is higher than the cost of an ankle monitor and being on house arrest for many is a better option than being in jail, in places like Chicago, the majority of people who are on electronic monitoring are awaiting trial and have yet to be convicted. But unlike other jurisdictions, Cook County does not charge offenders....

Like so many electronics, ankle monitors also don’t always work. When the electronic monitor senses a violation, whether from not being charged at the right time or when someone steps outside their house at the wrong time, the company running the monitor notifies law enforcement. Then officers may be sent to the wearer’s home or work.

With the dramatic increase of people on ankle monitors during the pandemic in Chicago, local watchdogs say they’re seeing a rise in violations for small infractions. Matthew McLoughlin, an organizer with the Illinois Network for Pretrial Justice, said he’s also seen an increase in more false violations and technical glitches for people whose ankle monitors rely on GPS tracking.

July 5, 2021 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (1)

Important perspectives as rising homicides garner ever more attention

In this round up of recommended reading, I noted the the New York magazine article titled, "Progressives Don’t Need to Downplay Rising Homicides."  I wanted to flag the article again in the separate post because I think this piece provides particularly useful perspectives on the ever-growing concerns about increased homicides in the US and about a variety of reactions thereto.  I highly recommend the piece in full (and its many links), and here I will spotlight just a few of many passages that merit attention (with some links from the original):

At our most peaceful, the United States is an exceptionally murderous nation.

In 2014, America recorded the lowest homicide rate in its history — and the highest homicide rate of any comparably prosperous country.  That year, Americans were more than three times as likely as Western Europeans to die by murder. Like most things in the U.S., this aberrantly high risk of homicide was not distributed equally.  Residents of Washington, D.C., were murdered at eight times the rate of those in Iowa.  Within the District, as in virtually all major U.S. cities, killing was largely quarantined to a select group of politically disempowered, economically dispossessed neighborhoods. Poor Black people did the bulk of the dying.

America’s distribution of violent death has changed little over the past seven years.  But the sum total has risen considerably. In 2019, the U.S. murder rate was about 11 percent higher than it had been in 2014.  We do not yet have an official body count for 2020.  But preliminary data suggests that, across major cities, homicides rose by an average of 30 percent last year — and then jumped another 24 percent through the first few months of this one....

The dismissive posture that many progressives adopt toward coverage of violent crime is motivated by inarguable insights: Americans routinely overestimate the prevalence of crime, a fact that is largely attributable to the media’s “if it bleeds, it leads” modus operandi.  Despite the homicide surge of the past two years, America’s murder rate remains far lower than it was in the 1990s, and mainstream coverage does not always convey this fact.  Even last year, the number of Americans killed by homicide (roughly 20,000) paled in comparison to those killed by more mundane, perennially under-covered social ills such as the tobacco industry (est. 480,000), air pollution (est. 100,000), or lack of health insurance (est. 45,000)....

Progressives aren’t going to get the media to ignore crime for the sake of social justice.  And we aren’t going to persuade the urban working class to disregard rising homicide.  Thus, our best bet for resisting a punitive turn in criminal-justice policy is to convince voters that our approach to public safety is more effective than the pro-carceral status quo.

Happily, the evidence that a progressive anti-crime agenda would outperform America’s traditional draconian one is quite strong.  Contrary to the wishful speculations of some pundits, the past year’s spike in homicide is not attributable to the rise of progressive prosecutors: Murder rates have risen no faster in cities with reformist district attorneys.

Meanwhile, criminological research suggests that:

• Long prison sentences do not deter crime, and are actually counterproductive for public safety.

• Investments in preschool and summer-job programs lower disadvantaged young people’s susceptibility to criminal activity.

• Community-based “violence interrupter” programs can preempt lethal violence.

• Raising wages for “low-skill” workers can reduce recidivism, and thus, pro-labor policies are anti-crime policies.

• If the Medicaid expansion is any guide, then increasing access to affordable health care in general — and free drug treatment in particular — can deliver immediate reductions in both violent and property crimes.

• Laws tightening licensing requirements for handgun purchases have yielded dramatic reductions in firearm homicide rates.

July 5, 2021 in National and State Crime Data | Permalink | Comments (1)

Let freedom ring via recent postings at Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in a little while, and doing so today seems especially appropriate as we enjoy a last day for officially celebrating our nation's founding in a commitment to "Life, Liberty and the pursuit of Happiness." So, here are some freedom ringing highlights (often at the intersection of criminal justice reform and marijuana reform) from MLP&R:

July 5, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Any hot takes on another lukewarm criminal justice Term from SCOTUS?

Last year as the Supreme Court's October 2019 Term was winding to a close, I pondered in this post whether "others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters."  My main point back in summer 2020 was that, following a steady stream of major SCOTUS rulings for the better part of two decades, since 2015 there has been precious few truly memorable Supreme Court rulings in this arena.

Fast forward a year, a the rest of life still feels a lot more eventful than the Supreme Court's sentencing docket and even its broader criminal justice docket.  There were, arguably, more than the usual number of notable sentencing cases, particularly Jones v. Mississippi (Eighth Amendment juve senencing), Borden v. US (ACCA predicates) and  Terry v. US (crack resentencing after FIRST STEP).  But these cases were either applications of prior precedents and/or resolutions of relatively small statutory issues.  Though consequential for particular classes of defendants and somewhat revealing about the commitments of various Justices, none of these cases breaks significant new jurisprudential ground.  The one SCOTUS case this Term that clearly did break new jurisprudential ground, Edwards v. Vannoy (finding non-retroactive unanimous jury Ramos ruling), did so by formally eliminating a part of Teague retroactivity doctrine that had never actually been applied by SCOTUS in three decades.

That all said, my sentencing focus — and my eagerness for juicy cases to blog about — surely distorts my perspectives on any and every SCOTUS Term.  The Term just concluded did have a number of notable Fourth Amendment and immigration rulings that may be a lot more impactful than I realize.  And with three new younger Justices who will likely play a leading role in all SCOTUS doctrines for perhaps decades to come, every one of their votes and discussions in criminal cases could already be viewed as very important.  (Notably, this SCOTUSblog chart reviews the make-up of the entire SCOTUS OT20 docket; criminal law, immigration law, and search and seizure are among the largest categories in that accounting.)    

With that wind up, I would be eager to hear from readers (or Tweeters) with any hot takes on what still feels to me like another lukewarm criminal justice Term from SCOTUS. 

July 5, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

July 4, 2021

Continued decline of capital punishment in US detailed in DPIC mid-year review for 2021

The Death Penalty Information Center has provided a detail online "2021 Mid-Year Review" of death penalty administration in the United States.  Here is how the review gets started:

The first half of 2021 spotlighted two continuing death-penalty trends in the United States: the continuing erosion of capital punishment in law and practice across the country; and the extreme and often lawless conduct of the few jurisdictions that have attempted to carry out executions this year.  The year began with three executions that concluded the Trump administration’s unparalleled spree of 13 federal civilian executions in six months and two days, and saw state attempts to revive gruesome, disused execution methods and to introduce never-before-tried ways of putting prisoners to death.  At the same time, the first half of 2021 featured the historic abolition of capital punishment in the former home of the Confederacy and historically low numbers of both executions and new death sentences.

Virginia’s abolition of the death penalty was significant both historically and symbolically.  Its repeal of capital punishment was the first time a Deep South state whose death penalty was closely tied to a history of slavery, lynching, and Jim Crow segregation had abandoned the punishment.  Virginia was the 23rd state to abolish the death penalty and, with formal moratoria on executions in place in three states, meant that a majority of states either did not authorize the death penalty or had a formal policy against carrying it out.

Five people were executed in the first half of the year — three by the federal government and two by the state of Texas. Only four new death sentences were imposed, a rate of sentencing unmatched since the death penalty resumed in the U.S. in the 1970s.  The low numbers were once again unquestionably affected by the pandemic, but signaled that 2021 will be the seventh consecutive year of fewer that 30 executions and fewer than 50 new death sentences in the U.S.

July 4, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Reviewing a few Fourth of July postings (while awaiting Prez Biden clemency action to enhance liberty)

Liberty-us-flag-600-dreamstimeI have not always done special posts to celebrate Independence Day over the last 18 years of blogging.  But, looking back at my archives this morning, I realized I have done enough notable July 4 posts to justify a bit of a celebratory review:

From 2005: Celebrating liberty, Blakely-style

From 2008: Celebrating liberty in the country leading the world in incarceration rates

From 2009: What to the American imprisoned is the Fourth of July?

From 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"

From 2017: "Everyone should go to jail, say, once every ten years"

From 2018:  Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty?

From 2019: Imagining an Independence Day in which Governors and the President compete to use their clemency powers to enhance liberty and freedom

These last two postings serve as a timely reminder that, so far, Prez Joe Biden is yet to live up to his campaign promise to "broadly use his clemency power" in order "to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes."  Commuting the sentences of persons serving undue time in federal prison or on home confinement could and would be, of course, one way to enhance liberty on this special day for celebrating freedoms; granting pardons in order to free persons from burdensome collateral consequences could and would also enhance "Life, Liberty and the pursuit of Happiness" for deserving recipients.

I am quite fearful that Prez Biden is in no rush to use his clemency authority to enhance liberty.  But, as 2021 marches forward, I am likely to keep highlighting the reality that every 20th Century president, except for Richard Nixon and Bill Clinton, granted some clemencies during his first year in office.  Of course, the 21st Century record is much uglier, with a lone pardon by Prez Trump in 2017 as the only first-year clemency grant by a president in the current century.  I will keep rooting for Prez Biden to return to the 20th Century norms rather than continue the ugly 21st Century record, but I am not holding my breath. 

July 4, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)