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July 17, 2021

"Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision"

The title of this post is the title of this short report from the National Academies of Sciences, Engineering, and Medicine capturing the proceedings of a notable workshop. Here is how the report is described:

The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States.  This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process. Speakers at the workshop presented on deeply rooted inequalities within the criminal justice system, which exist not only in readily measured areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision.  This publication highlights the presentations and discussion of the workshop.  

July 17, 2021 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

"How the Criminal Justice System's COVID-19 Response has Provided Valuable Lessons for Broader Reform"

The title of this post is the title of this notable new research brief written by multiple authors and distributed by RAND Corporation.  I recommend the full document, and here is how it is introduced:

To better understand the challenges that the COVID-19 pandemic has created within the criminal justice system and how the various sectors of the system have adapted to those challenges, the Priority Criminal Justice Needs Initiative conducted a series of panel workshops with representatives of different sectors within the system.  Panels focused on law enforcement, the court system, institutional corrections, community corrections, victim services providers, and community organizations.  This brief presents key lessons learned and recommendations offered by panel workshop participants.

And here is a closing section that is dear to my data-nerd heart:

There is an urgent need to assess what data need to be collected now, as the pandemic continues, for fear of losing the chance to assess what has been learned and how the changes made have performed.  For example, in some agencies, there have been significant differences in the doses of justice intervention received by different people, and solid information about how those doses varied might become very difficult to reconstruct after their program involvement is complete.  What the system did — and the value of it continuing to do some of those things — is part of the story, and the collection of data to support research and evaluation efforts going forward can help support the case for maintaining some of those practices.  And some of the most important lessons from the pandemic come from what the system did not do, including the choice to not arrest many people and not require some individuals to complete their original sentences or periods of detention for particular crimes and violations.  Lessons can be learned from what that inaction means for potential changes that could be made to the justice system of the future.

July 16, 2021 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

July 15, 2021

Federal prison population starting to grow again as we approach six months into Biden Administration

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play lots of expected and unexpected roles in shaping federal prosecutions and sentencings, and broader phenomena like the COVID pandemic can impact the federal prison population more than specific justice policies.  Consequently, I was disinclined to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before we saw any major DOJ policy changes and many more months before any policy changes started impacting the federal prison population count.  

Sure enough, when we hit the "100 days" milestone for the Biden Administration, I noted in this May 6, 2021 post that the federal prison population clocked in at 152,085 according to the federal Bureau of Prisons accounting.  In other words, no significant prison population growth early on in the Biden era.  But two months later, as we approach the six month mark for the Biden Administration, the federal prison population is starting to really grow again according to the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  Specifically, as of the ides of July 2021, the federal prison population clocks in at 154,596.

A BOP-measured growth of over 2500 federal inmates in just over two months strikes me as pretty significant, although I would guess that an easing of the COVID pandemic is the primary explanation.  The number of federal sentencings and the number of persons required to report to begin serving federal sentences have likely increased significantly in the last few months; I doubt any new Biden Administration (or AG Garland) policies or practices account for the (now 2%) growth in the federal prison population during the first six months of Joe Biden's presidency.

That said, I hope I am not the only one watching this number closely.  Especially given that the COVID pandemic is not really over and that a lot more surely could be safely "cut" from a bloated federal prison population, it will be quite disappointing if the Biden first term replicates the Obama first term marked by quite significant federal prison population growth.

July 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

  • Black Disparities in Youth Incarceration
    • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
    • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
  • Latinx Disparities in Youth Incarceration
    • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
    • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
  • Tribal Disparities in Youth Incarceration
    • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
    • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

July 15, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

July 14, 2021

Joe Exotic (of "Tiger King" fame) prevails on technical guideline issue to secure resentencing on Tenth Circuit appeal

It seems like a very long time ago that everyone was talking about Joe Exotic and Carole Baskin.  The must-see Netflix documentary "Tiger King" about their ugly rivalry dropped just as we were all going into pandemic lock down, and it was only about 18 months ago that we were all talking about Joe and Carole and their cats.  That is a lot less time than the 264 months (22 years) that Joe Exotic was sentenced to after his federal jury convictions for multiple wildlife crimes and two counts of using interstate facilities in the commission of murder-for-hire plots to kill Carole Baskin.

But what is old is new again thanks to today's Tenth Circuit panel decision in US v. Joseph Maldonado-Passage, No. 20-6010 (10th Cir. July 14, 2021) (available here).  Here is how the panel opinion gets started:

It was a rivalry made in heaven.  Joseph Maldonado-Passage, the self-proclaimed “Tiger King,” owned what might have been the nation’s largest population of big cats in captivity. Carole Baskin was an animal-rights activist who fought for legislation prohibiting the private possession of big cats.  He bred lions and tigers to create big-cat hybrids — some the first of their kind.  She saw the crossbreeding of big cats as evil.  He built his business around using cubs for entertainment.  She protested his events as animal abuse and urged boycotts.

The rivalry intensified after Baskin sued Maldonado-Passage for copyright and trademark infringement and won a million-dollar judgment.  Maldonado-Passage responded by firing a barrage of violent threats at Baskin, mostly online.  And he didn’t stop there.  Before long, he was plotting her murder.  Twice, within weeks, he set about hiring men to kill Baskin — one, an employee at his park; the other, an undercover FBI agent.

Maldonado-Passage soon faced a federal indictment charging him with twenty-one counts, most for wildlife crimes, but two for using interstate facilities in the commission of his murder-for-hire plots.  A jury convicted Maldonado-Passage on all counts, and the court sentenced him to 264 months’ imprisonment.

On appeal, he disputes his murder-for-hire convictions, arguing that the district court erred by allowing Baskin, a listed government witness, to attend the entire trial proceedings.  He also disputes his sentence, arguing that the trial court erred by not grouping his two murder-for-hire convictions in calculating his advisory Guidelines range.  On this second point, he contends that the Guidelines required the district court to group the two counts because they involved the same victim and two or more acts or transactions that were connected by a common criminal objective: murdering Baskin.

We hold that the district court acted within its discretion by allowing Baskin to attend the full trial proceedings despite her being listed as a government witness, but that it erred by not grouping the two murder-for-hire convictions at sentencing.  Accordingly, we affirm the conviction but vacate the sentence and remand for resentencing.

As noted by the 10th Circuit panel, correction of the guideline error will shift Joe Exotic's advisory sentencing range down to 210 to 262 months from the 262 to 327 months used at his initial sentencing.  So Joe will still be facing a hefty guideline range, but maybe he will be better able to advocate and secure a below-guideline range at an upcoming resentencing.

July 14, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (0)

Prez Biden names new drug czar just in time for latest disconcerting accounting of drug overdose casualties

Sub-buzz-10462-1626268647-10As reported in this Politico piece, the "Biden administration is tapping Rahul Gupta as its top drug policy official, charging the former West Virginia public health commissioner with leading federal efforts to combat a spiraling addiction crisis.  In some drug reform quarters, Gupta's appointment is being celebrated as evidenced by this Marijuana Moment piece headlined "Biden Selects White House Drug Czar Who Helped Implement State Marijuana Program And Touted Medical Benefits."  But this new Filter article about the appointment strikes a much more wary tone:

Filter broke the news in March that Gupta was the leading candidate for the role, reporting that harm reduction experts and activists have been critical of his drug policy record. In 2018, he supported the closure of a low-barrier syringe service program.  West Virginia is not only struggling to prevent soaring overdose deaths, but is now facing multiple outbreaks of HIV and hepatitis C, driven by a lack of harm reduction infrastructure and access to sterile syringes for people who use drugs.  In February, the Centers for Disease Control and Prevention described Kanawha County’s HIV outbreak as “the most concerning in the United States.”

It remains to be seen whether as “drug czar” Gupta will take more pro-harm reduction positions and support local harm reduction organizations that are facing political backlash across the country.

“The Biden Administration has made enhancing evidence-based harm reduction efforts one of ONDCP’s top priorities,” Robin Pollini, associate professor at West Virginia University’s Department of Behavioral Medicine & Psychiatry, told Filter.  “I sincerely hope Dr. Gupta will embrace the opportunity to lead on that issue.  And I would ask that he bring that leadership without delay back to West Virginia, where anti-harm reduction laws at both the state and local levels are literally killing our loved ones, friends, and neighbors.”

Gupta is set to take on the federal government’s top drug policy job during a historic year of record-breaking overdose deaths, driven primarily by the presence of illicitly manufactured fentanyl in the unregulated drug supply, as well as stimulants like methamphetamine.

This last sentence from the Filter piece foreshadowed this morning's headlines with the latest reports on just how bad the numbers were on overdose deaths in 2020. Here are a couple of the reports:

From BuzzFeed News, "More People Than Ever Died Of Drug Overdoses In The US In 2020"

From the Wall Street Journal, "U.S. Drug-Overdose Deaths Soared Nearly 30% in 2020, Driven by Synthetic Opioids"

These press reports on the latest 2020 overdose death data draw from this CDC page with more details.  There is an interesting map on the CDC page showing state-by-state overdose numbers  in 2019 and 2020.  Remarkably, two states saw declines in overdose deaths in 2020, New Hampshire and South Dakota.  But, even more remarkably, neighboring Vermont and Nebraska saw huge increases in overdose deaths in 2020.  Sadly, it is hard to find any clear pattern in all the state data except lots of death.

July 14, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

"Criminalizing Migration"

The title of this post is the title of this notable short paper now available via SSRN authored by César Cuauhtémoc García Hernández.  Here is its abstract:

Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity.  Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies.  The presidency of Donald Trump augmented this trend and brought it to public attention.  But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants.  Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.

July 14, 2021 in Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

What legally distinguishes a "non-violent Federal cannabis offense" from a violent one (and would multiple SCOTUS rulings be needed to sort this out)?

Legal Marijuana Oregon Measure 91The question in the title of this post is prompted by key language in the resentencing and expungement provision of the "discussion draft" of Senate Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this CAO "discussion draft" is available here; this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy (see coverage here at MLP&R).  Of course, I am distinctly interested in the criminal justice provisions of this bill, and I was excited to see there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT."  But the CAOA bill draft includes a notable (and I think problematic) linguistic limit on the reach of resentencing and expungement.

Specifically, the main expungement provision of the CAOA calls for automatic expungement of only a "non-violent Federal cannabis offense."  CAO sec. 311(a)(1) (emphasis added).  Similarly, the provision allowing for "sentencing review" states:

For any individual who is under a criminal justice sentence for a non-violent Federal cannabis offense, the court that imposed the sentence shall, on motion of the individual, the Director of the Bureau of Prisons, the attorney for the Government, or the court, conduct a sentencing review hearing.  If the individual is indigent, counsel shall be appointed to represent the individual in any sentencing review proceedings under this subsection.

CAO sec. 311(b)(1) (emphasis added).  I really like the provision requiring the appointment of counsel for these "sentencing review proceedings."  But I wonder and worry that, if this provision were to become law, counsel might be spending way too much time just figuring out whether prospective clients qualify as "non-violent" federal cannabis offenders. 

Though we all often use terms like violent and non-violent as offense descriptors, federal criminal justice practitioners know all too well that there is never-ending litigation in the context of many other federal statutes and provisions concerning whether certain prior offenses qualify as "violent" or not.  (Frustrated by just one small piece of this litigation, I joked in this post that one of the circles of hell set forth in Dante's Inferno surely involved trying to figure out what kinds of past offenses can or cannot be properly labeled "violent.")

Especially troublesome in this context is the realty that, technically, all basic federal drug offenses are "non-violent" because there are not any formal elements of these offenses that require any proof of force or injury.  And yet, more than a few "drug warriors" have been heard to say that all drug crimes are by their very nature violent and that the only types of  drug offenders who get the attention of federal prosecutors are those who have a violent history or violent tendencies.  Consequently, I would expect that federal defense attorneys would have a basis to argue that every  "Federal cannabis offense" qualifies as non-violent, while federal prosecutors would likely contend that at least some (many?) federal cannabis offenders are to be excluded by this "non-violent" limit in the bill text.

I suspect that this section of the Cannabis Administration and Opportunity Act was just drawn from similar language in the House version of proposed federal marijuana reform (section 10 of the MORE Act), and the CAOA's current status as a "discussion draft" should provide an opportunity to clean up this problematic adjective.  Though I understand the political reason for wanting to distinguish less and more serious drug offenders for expungement and resentencing provisions, the "non-violent" terminology seems to me quite legally problematic.  (There are other aspects of the "RESENTENCING AND EXPUNGEMENT" section of this new bill that are far from ideal, but this terminology struck me as the biggest red flag.)

Some related work in this space:

A few of many prior recent related posts:

July 14, 2021 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1)

July 13, 2021

Interesting (but unclear) local report on federal sentencings in NYC impacted by COVID realities

The New York Daily News has this interesting (but less-than-clear) article discussing some federal sentencing issues under the headline "Brutal conditions in NYC jails during COVID pandemic caused federal judges to impose lighter sentences: analysis."  Here are excerpts:

Federal judges handed down dozens of lighter sentences due to brutal conditions in New York City’s federal jails during the coronavirus pandemic, new statistics obtained by the Daily News show.

A Daily News analysis of 43 cases involving people who could not afford their own attorneys shows that judges in Manhattan and Brooklyn federal courts imposed sentences that were on average 58% lower than what federal guidelines recommended.  In nearly all of the cases, judges either cited coronavirus conditions behind bars in their sentences, or attorneys emphasized the conditions in legal briefs.

In one case in July 2020, Judge Paul Engelmayer noted that punishment for Juan Carlos Aracena De Jesus’ illegal reentry into the U.S. after being deported was never supposed to include catching coronavirus. “I am mindful ... that you have served most of your time in prison so far during the worst pandemic in this country during the past 100 years,” Engelmayer said. “I’m mindful that your experience in prison as a result of the pandemic, the preceding lockdown, the ensuing lockdown, and your own illness was frightful. Prison is supposed to be punishment, but it is not supposed to be trauma of that nature or close.” While the sentence guidelines in the case was for 30-37 months, Engelmayer sentenced Aracena to time served.  He had spent six months at the Metropolitan Correctional Center in Manhattan.

Judge Paul Oetken went so far as to come up with a formula for how much credit inmates should receive toward a sentence if they were behind bars during the pandemic. “I do believe that because it’s been harsher than a usual period that it’s more punitive, that it’s essentially the equivalent of either time and a half or two times what would ordinarily be served,” Oetken said on April 2 while sentencing a low-level crack dealer.  The sentence amounted to time served for the dealer, Daniel Gonzalez, who said he has a recurring foot infection due to unsanitary showers at MCC.

In all the cases, COVID was not the sole factor judges used to determine sentences.  Judges also considered an inmate’s health, the nature of the crime and other factors.  For Victor Marmolejo, 47, the risk of deadly consequences from his diabetes resulted in him receiving an 18-month sentence when prosecutors had asked for up to four years....

Lawsuits have alleged that coronavirus ravaged the MCC in Manhattan and the Metropolitan Detention Center in Brooklyn and that staff failed to implement commonsense preventative measures. Inmates, meanwhile, were kept in lockdown and had limited or no access to family and their attorneys.  Judges have become unusually outspoken about problems at the MCC and MDC since the pandemic began....

The head of the Federal Defenders in Brooklyn, Deirdre Von Dornum, said the cases where incarcerated pretrial detainees received shorter-than-guidelines sentences based on medical and jail conditions were “far more” than they usually get.  “COVID-19 did not change the sentencing calculus.  Consistent with governing sentencing law, judges have always taken medical conditions and medical risks into account.  What changed was the breadth and depth of this medical crisis and the clear inability of MDC and MCC to protect those in their custody and care who had pre-existing medical conditions,” Von Dornum said.

I am not at all surprised to hear accounts of federal judges taking COVID-related matter into account at sentencing.  Indeed, the instructions Congress has set forth for sentencing judges in 18 USC § 3553(a) really mandates consideration of factors that COVID realities can impact in various ways.  So, what is most notable and important is not just how, but really how much, judicial sentencing decision-making is being impacted by COVID matters.

Unfortunately, this Daily News report, which the article describes as an "analysis of 43 cases involving people who could not afford their own attorneys" in Manhattan and Brooklyn federal courts, is too opaque to provide a clear picture of COVID-era sentencing realities.  During the COVID era, there have probably more than 1000 cases sentenced in Manhattan and Brooklyn federal courts, so the 43 cases analyzed by the Daily News are likely not truly representative.  Moreover, even before COVID, judges in the Eastern and Southern Districts of New York typically imposed within-guideline sentences in only about 25% of all cases.  So lots of below-guideline sentences for lots of reasons was the norm even before COVID.

That all said, the impact of COVID on sentencing practices presents critical and hard questions that I am pleased to see this local newspaper discuss.  I hope more media, as well as federal agencies and academics and many others, will keep seeking to explore these important issues.

July 13, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"We Know How to Fix the Clemency Process. So Why Don’t We?"

The title of this post is the headline of this new New York Times essay authored by Rachel Barkow and Mark Osler.  As with everything authored by these two professors, this piece should be read in full.  Here are excerpts:

The fundamental problem with having the Justice Department run clemency is that prosecutors aren’t good at it.  Under the department’s regulations, the Office of the Pardon Attorney must give “considerable weight” to the opinions of local prosecutors — the very people who sought the sentence in the first place.

These prosecutors typically don’t keep up with the people they prosecuted to learn what they’ve been doing while incarcerated or what their post-prison re-entry plans look like.  Their data point is the conviction itself, so their analysis of the case is frozen in time. No matter the intent from on high, it is hard to get around this obstacle.

Vice President Harris, a former prosecutor herself, has warned of “inherent conflicts of interest” in the current process. Justice Department lawyers, she argued during her campaign, should not determine whether people convicted by colleagues in the legal system should have their sentences shortened or commuted....

The faulty architecture of clemency has been apparent for decades, with shamefully low grant rates from presidents of both parties.  If the administration put in place a competent advisory board to process petitions instead of relying on the Justice Department’s flawed and biased process, it could address the backlog, just as a board addressed the huge backlog of petitions for clemency from draft evaders in the wake of the Vietnam War.

The board should include experts in rehabilitation, re-entry and prison records, including a person who has been incarcerated.  It would be able to consult with the Justice Department, but the department would no longer be responsible for the decision itself.  This will allow the board to make objective recommendations; then it will be up to the president whether to accept them.

The Biden administration understands the value of expertise and process.  Justice is the last place where an exception should be made.

July 13, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

BJS reports on "Alcohol and Drug Use and Treatment Reported by Prisoners"

The Bureau of Justice Statistics has released this new report, titled "Alcohol and Drug Use and Treatment Reported by Prisoners: Survey of Prison Inmates, 2016," which explores drug and alcohol use among prisoners before they were imprisoned their participation in drug and alcohol treatment programs since admission to prison.  Here are "Highlights" appearing on the report's first page:

And here are just a few of the "Other key findings" that also caught my eye:

July 13, 2021 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

"Promoting Proportionality Through Sentencing Guidelines"

The title of this post is the title of this short new paper authored by Julian V. Roberts now available via SSRN.  Here is its abstract:

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing.  The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing. 

July 13, 2021 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

July 12, 2021

A true scholarly feast for Apprendi fans

I was quite pleased to discover that the North Carolina Law Review now has fully available online here the full contents of its June 2021 issue with article from its Apprendi at 20 symposium.  Everyone of these articles looks like a must-read and I am already joyously working my way through them all:

July 12, 2021 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1)

Spotlighting prosecutors advocating for and embracing second-look sentencing mechanisms

At a conference a dozen years ago, I spoke about the need for second-look sentencing mechanisms and argued that prosecutors should be much more involved in reviewing past sentences.  That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010). 

I am very pleased that these ideas are finally coming into vogue, as highlighted by this new Law360 piece headlined "New Wave Of Prosecutors Push For Resentencing Laws."   I recommend this piece in full, and here are excerpts:

Washington county prosecutor Dan Satterberg knew when his state passed its three-strikes law in 1993, mandating that repeat offenders of certain crimes be sentenced to life without parole, that those sentences would one day need to be undone....

When Satterberg was elected district attorney of Washington's King County in 2007, he created a team to review cases, identify people who received life sentences under the three-strikes law and try to find a legal avenue for those people to be resentenced....

But Satterberg realized that in order to move more quickly with resentencing in more cases, he needed to have the explicit legal authority to request judges to resentence people.  So Satterberg drafted and lobbied for the passage of S.B. 6164 that gives Washington state prosecutors the power to request resentencing in the interest of justice.  The law was passed last year.

So far, Satterberg has not been able to get anyone resentenced under the new law, because the court asked prosecutors not to file these resentencing petitions in light of the COVID-19 pandemic and limited court operations. Satterberg's office, however, has identified more than 100 cases that could be eligible for resentencing under the law. The office hopes to have its first resentencing under this law in August....  "I think it's consistent with the overall mission of the prosecutor, which is to seek justice," Satterberg said about S.B. 6164. "If there are procedural barriers to seeking justice, then you need to advocate to remove those."

More state and county prosecutors are reaching the same conclusion as Satterberg that they need the power to request resentencing from judges to correct past injustices, end mass incarceration, give people second chances and divert money spent on incarceration to more effective crime prevention methods.

In April, more than 60 current and former prosecutors signed a statement by the nonprofit network Fair and Just Prosecution urging their colleagues to review decadeslong sentences in their jurisdictions and to no longer seek such sentences, except in cases where the convicted individual poses a serious safety risk....

The bill that Satterberg spearheaded was inspired by the first prosecutor-initiated resentencing law passed by California in 2018.  The California law, A.B. 2942, was drafted by Hillary Blout, a former San Francisco prosecutor who worked under Vice President Kamala Harris when she served as the district attorney of San Francisco.

After Blout served as a prosecutor for six years, she founded the nonprofit For the People in 2019 that works with prosecutors to implement resentencing legislation in their states.  Blout said that resentencing laws are important to correct failed policies that sought to achieve public safety by imprisoning people for as long as possible....

Twenty-five states including New York, Virginia and Texas are currently considering resentencing legislation, according to a report released in May by The Sentencing Project, a nonprofit research organization that aims to improve the U.S. criminal justice system and reduce the prison population.  Oregon and Illinois both passed prosecutor-initiated resentencing laws during this legislative session that were signed by their respective state governors in late June.

While these resentencing laws have the power to end harsh sentences and end mass incarceration, some advocates have criticized resentencing laws that only allow prosecutors to request resentencing.  Advocates argue that incarcerated people should also be allowed to petition courts for resentencing in their cases.  Not all prosecutors are prioritizing resentencing even when they have the power to do so, leaving incarcerated people serving overly long sentences, they say.

A few of many prior related posts:

A sampling of my prior writing on this front through the years:

July 12, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

July 11, 2021

Spreading word about post-graduate legal fellowships with Brennan Center’s Justice Program

I received an email earlier this month from Lauren-Brooke Eisen, the Director of Justice Program at the Brennan Center for Justice, which I am happy to be able to share here to spread the word about fellowship opportunities:

Each year, the Brennan Center looks to partner with current law school students and judicial law clerks interested in applying for postgraduate legal fellowships.  Such fellowships include those funded by programs like the Equal Justice Works, Skadden, and Kirkland & Ellis fellowship programs, and law-school-specific fellowships, like the Arthur Liman Public Interest Law Fellowship, the Robina Public Interest Fellowship at the University of Minnesota Law School, and the Columbia Law JD Public Interest and Government Fellowship, among others.

The Justice Program in particular is looking for assistance with research, policy development, and advocacy aimed at reducing the size and scope of our criminal legal system in addition to reducing the harms of our vast carceral state. Much of our work focuses on underscoring racial disparities and the perverse incentives that help sustain mass incarceration and uncovering the economic injustices of our criminal legal system, among others.

We especially value the perspectives of potential fellows with past experience in the criminal legal system or related legal reform work.  If you know someone who might be interested in this position, please tell them to email a short statement describing their project proposal, along with a resume, transcript, writing sample, and contact information for three references to brennancenterjobs @ nyu.edu or to me directly at Lbeisen @ nyu.edu  The subject line should read “Fellowship Opportunities,” and the message should indicate the fellowship for which they are seeking sponsorship.

July 11, 2021 in Who Sentences | Permalink | Comments (0)

"Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic"

The title of this post is the title of this new article by Miko Wilford, David Zimmerman, Shi Yan, and Kelly Sutherland published in the Journal of Experimental Psychology: Applied. Here is its abstract:

Over 95% of criminal convictions in the United States are the result of guilty pleas.  Consequently, it is critical that we ensure the process of pleading guilty is as free of coercion as possible.  Yet, research has indicated that incarcerating defendants to await trial could have an undue influence on their decision to plead guilty.  The current research employed a novel computer simulation to examine the impact of the COVID-19 pandemic on plea decision making among the innocent and the guilty when faced with potential pretrial detention.  While presenting COVID-related information to participants increased both true and false guilty pleas, further analyses indicated that concerns about COVID-19 weighed more heavily on the innocent than the guilty.  These findings illustrate the negative impact a pandemic could have in combination with a system of pleas that often allows prosecutors to provide defendants with just one guaranteed respite from jail — a guilty plea.

July 11, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Lots more notable weekend reading

Before the long holiday weekend, I flagged in this post (too) many stories and commentaries worth a read.  A subsequent work week and weekend, though shorter, still produced another long list of pieces criminal justice fans might want to check out:

From The Hill, "Biden under pressure to pick new breed of federal prosecutors"

From National Review, "Prison Reform Takes Center Stage at CPAC"

From the New York Times, "How Should We Do Drugs Now?"

From the New York Times, "The Real Toll From Prison Covid Cases May Be Higher Than Reported"

From Reason, "He Sold $20 Worth of Drugs. Prosecutors Want Him in Jail for Almost 10 Years—and More if He Refuses the Plea Deal."

From Slate, "It’s Time for a New Crime Bill"

From Slate, "Joe Biden Is Doing Nothing to Prevent Another Federal Execution Spree"

From The Trace, "Illinois Has a Program to Compensate Victims of Violent Crimes. Few Applicants Receive Funds."

July 11, 2021 in Recommended reading | Permalink | Comments (0)