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August 7, 2021

A couple of accounts of the persistent and problematic challenges of reentry

In recent days, I have seen a couple of notable new accounts of the trip wires that we have created for persons seeking to reenter the community after prison.  Here are links to the stories and excerpts:

From Daily Beast, "Pot Prisoner Sentenced to Life Before Trump Pardon Is Back in Custody":

In 2010, a federal judge sentenced Tony DeJohn to life plus 10 years on a nonviolent marijuana charge. Because it was DeJohn’s third conviction, the judge was required by law to impose the maximum penalty available. He was just 31 years old.

Eleven years later, DeJohn, who is from Upstate New York but had been locked up in high-security facilities in Pennsylvania, Kentucky, and Colorado, was granted clemency by then-President Donald Trump. He was released from prison on January 20, 2021.

But today, DeJohn is back in federal custody. The now 47-year-old will be spending the next six months in a Pennsylvania halfway house, according to court filings reviewed by The Daily Beast—but not because he broke any new laws.

From the REFORM Alliance, via TWitter:

Daniel B., a father of four from Nebraska, wants to be able to go to his daughter’s softball games, advance in his career, and provide for his family.  But the strict rules of Federal Supervised Release make it difficult for him to succeed as a parent.

Since being released from prison, Daniel obtained a job, married, & became a minister.  He is also serving 10 years of Supervised Release, where the threat of technical violations — like missing curfew, traveling w/o permission, or losing his job—could send him back to prison.

Daniel isn’t alone.  We have far too many people on Federal Supervision, serving terms that are too long. The system is wasteful and even counterproductive to public safety.  Too often, Federal Supervision acts like a trap door to prison instead of a springboard to success.

UPDATE: One more on this topic from this NC Policy Watch blog post titled "Leaving prison? NC’s mind-boggling bureaucracy stands between you, a state-issued ID, and quite possibly your future." Here is an excerpt:

One of the most pervasive challenges for people returning home from incarceration is also one of the least discussed: state-issued ID cards....

Over 22,000 North Carolinians are released from incarceration each year. Thousands of them find themselves unable to acquire a state-issued ID. The process is so convoluted for the re-entry population that it is nearly impossible for many returning residents. Even if these folks returning home do everything right, the path to freedom, to independence, has been so narrowly circumscribed by state bureaucracy that whether someone succeeds or fails is as much a matter of luck as it is of diligence and perseverance.

Yet, officials with the power to streamline this process, to make it at least fair, continue to drag their feet on this issue. For years, advocates and reentry providers have asked the Department of Public Safety and NC Division of Motor Vehicles to collaborate on addressing this issue. Unfortunately, little has come from the process except unsuccessful efforts and more excuses.

August 7, 2021 in Reentry and community supervision | Permalink | Comments (4)

August 6, 2021

Rounding up some recent reads as another summer week winds down

I am already getting that summer-winding-down feeling, and so I am trying to savor every week of my favorite season.  Part of summer savoring means not always finding time to blog about every notable story and commentary I see, and here are just a few from this week that seemed worth flagging:

From BuzzFeed News, "The Biden Administration Is Rejecting 'The War On Drugs' And Turning To 'Harm Reduction'"

From The Conversation, "Pandemic pushed defendants to plead guilty more often, including innocent people pleading to crimes they didn’t commit"

From The Crime Report, "Cops on the Campaign Trail: A New Force in US Politics?"

From Reason, "The Government Says These Missouri Men Are Innocent. It Won't Release Them From Prison."

From the New York Times, "If You Paid Your Debt to Society, You Should Be Allowed to Work"

From the Washington Post, "If Biden abolishes the federal death penalty, he’ll have more support than you think"

August 6, 2021 in Recommended reading | Permalink | Comments (2)

August 5, 2021

Prof Slobogin discussing Just Algorithms in guest posts

6a00d83451574769e20224df387165200bIn this recent post, I flagged a notable new forthcoming book authored by Christopher Slobogin.  I asked Prof Slobogin if he might be interested in sharing some key ideas from this important book in a set of guest posts. He kindly agrees, and here is the first of the set.

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Doug has graciously invited me to blog about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press). There follows the first of three excerpts extracted from the Preface (the next two coming soon):

Virtually every state has authorized the use of algorithms that purport to determine the recidivism risk posed by people who have been charged or convicted of crime. Commonly called risk assessment instruments, or RAIs, these algorithms help judges figure out whether individuals who have been arrested should be released pending trial and whether a convicted offender should receive prison time or an enhanced sentence; they assist parole boards in determining whether to release a prisoner; and they aid correctional officials in deciding how offenders should be handled in prison.  Most of these algorithms consist of from five to 15 risk factors associated with criminal history, age, and diagnosis, although an increasing number incorporate other demographic traits and psychological factors as well. Each of these risk factors correlates with a certain number of points that are usually added to compute a person’s risk score; the higher the score, the higher the risk.  Some tools may also aim at identifying needs, such as substance abuse treatment and vocational training, thought to be relevant to rehabilitative interventions that might reduce recidivism. This book will provide examples of a number of these instruments so that the reader can get a sense of their diversity and nuances.

One purpose of this book is to explain how risk algorithms might improve the criminal justice system.  If developed and used properly, RAIs can become a major tool of reform. They can help reduce the use of pretrial detention and prison and the length of prison sentences, without appreciably increasing, and perhaps even decreasing, the peril to the public (goals that are particularly pressing as COVID-19 ravages our penal facilities).  They can mitigate the excessively punitive bail and sentencing regimes that currently exist in most states. They can allocate correctional resources more efficiently and consistently.  And they can provide the springboard for evidence-based rehabilitative programs aimed at reducing recidivism. More broadly, by making criminal justice decision-making more transparent, these tools could force long overdue reexamination of the purposes of the criminal justice system and of the outcomes it should be trying to achieve.

Despite their potential advantages, the risk algorithms used in the criminal justice system today are highly controversial.  A common claim is that they are not good at what they purport to do, which is to identify who will offend and who will not, who will be responsive to rehabilitative efforts and who will not be.  But the tools are also maligned as racially biased, dehumanizing, and, for good measure, antithetical to the foundational principles of criminal justice.  A sampling of recent article and book titles makes the point: “Impoverished Algorithms: Misguided Governments, Flawed Technologies, and Social Control,” “Risk as a Proxy for Race: The Dangers of Risk Assessment,” “Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor.” In 2019, over 110 civil rights groups signed a statement calling for an end to pretrial risk assessment instruments.  That same year 27 Ivy League and MIT academics stated that “technical problems” with risk assessment instruments “cannot be resolved.”  And in 2020 another group of 2323 scholars from a wide range of disciplines “demanded” that Springer publishing company, one of the largest purveyors of healthcare and behavioral science books and journals, “issue a statement condemning the use of criminal justice statistics to predict criminality” because of their unscientific nature.

A second purpose of this book is to explore these claims.  All of them have some basis in fact.  But they can easily be overblown.  And if the impact of these criticisms is to prevent the criminal justice system from using algorithms, a potentially valuable means of reform will be lost.  A key argument in favor of algorithms is comparative in nature.  While algorithms can be associated with a number of problems, alternative predictive techniques may well be much worse in each of these respects.  Unstructured decision-making by judges, parole officers, and mental health professionals is notoriously bad, biased and reflexive, and often relies on stereotypes and generalizations that ignore the goals of the system. Algorithms can do better, at least if subject to certain constraints. .

In blogs to come I describe these constraints, and how RAIs can be integrated into the criminal justice system.

August 5, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded

As highlighted in this Hill article, headlined "Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic," a number of advocacy groups have this week made a lengthy pitch to the Justice Department seeking to undo DOJ's internal memo concluding that federal prisoners released into home confinement will have to be returned to prison after the pandemic.  Here is an excerpt: 

Civil rights groups on Wednesday urged the Department of Justice (DOJ) to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars. 

Five organizations sent a 20-page letter to DOJ critiquing a Trump-era legal memo that concluded the department is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over.  They argued that the memo from the DOJ's Office of Legal Counsel (OLC) is based on a flawed interpretation of the CARES Act....

The letter was signed by the Democracy Forward Foundation, Families Against Mandatory Minimums, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Association of Criminal Defense Lawyers and Tzedek Association....

"The reasoning of the Memo is flawed and potentially harmful to the credibility of the office," the organizations wrote. "It overlooks important points of law and does not address reliance or due process issues that might apply to its analysis."

The full 20-page letter is available at this link, and here are portions of its introduction and conclusion:

OLC may reasonably determine that the Memo does not reflect the best (or even a permissible) reading of the relevant statutory language.  Specifically, the Memo read into the CARES Act a new requirement to revoke home confinement — immediately, and without discretion, at the end of the emergency — that does not exist anywhere in that statutory text. Under a plain reading of the CARES Act, the authority of the Bureau of Prisons to grant and revoke home confinement is the same as it always was under the pre-existing statutory scheme, except that BOP was authorized to “lengthen” the period of time a person may serve on home confinement.  Additionally, the Memo did not consider the affected prisoners’ reliance interests, potentially triggering a wave of hundreds or thousands of challenges when and if BOP attempts to implement the Memo’s instructions and placing BOP in legal jeopardy under recent Supreme Court precedent.

We have great respect for OLC’s non-partisan stance and the office’s general practice of stare decisis.  Consistent with OLC policy, however, we encourage you to reassess the Memo because it is incorrect and will present serious practical obstacles to BOP and the U.S. Attorneys’ Offices, not to mention the thousands of affected prisoners.  We provide the analysis below on why we believe that OLC should reconsider the Memo....

For these reasons, we respectfully request that OLC review the Memo and rescind it.  Time is of the essence. Each day that this Memo remains in place is a day that interferes with the ability of people living on home confinement to make the kinds of investments in families and employment necessary to successfully reintegrate into society.

Some prior recent related posts:

August 5, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

August 4, 2021

Still more great new content at great new Inquest website

blogged here last week about the launch of the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  I have flagged here and here the first eight great essays at the site, and now I see these two more must reads:

From Nancy Gertner, "Unfinished Business: Reckoning with the lives of all the men I sent to prison is a necessary, though not sufficient, step to reckon with the untold harm of mass incarceration."

From Kay Whitlock & Nancy A. Heitzeg, "Unraveling Carceral Reach: The work of addressing harm without more prisons, police, and punitiveness is daunting. But it can be done. And it’s happening now."

UPDATE: Since my posting, once more notable commentary went up at Inquest:

From Kenithia Alston & Emanuel Powell, "The Other Gun Violence: Shifting the narrative and policies on gun violence to include killings by police may spare many families from the pain of losing loved ones.

August 4, 2021 in Recommended reading | Permalink | Comments (0)

"Newspaper Expungement"

The title of this post is the title of this new essay by Brian Murray now available via sSRN. Here is its abstract:

Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement.  Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry.  Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government.  This means that private actors, if they possess the information, are beyond the reach of expungement law.  Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information.  This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information.

Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement.  Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system.  This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States.  This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.

August 4, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (2)

August 3, 2021

Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions

I came across this notable recent commentary by Jeff Jacoby in the Boston Globe titled "The very racist history of gun control: The Second Amendment right to keep and bear arms is indispensable to Black equality."  The piece highlights some of the racialized history of gun control in the US, but it failed to discuss the important modern reality of racially disparities in criminal enforcement of gun prohibitions.  And with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to spotlight how gun control laws are actually enforced in federal and state criminal justice systems.

We can start in New York because the SCOTUS case comes from that state and because the Black Attorneys of Legal Aid caucus and lots of NY public defender offices filed this interesting amicus brief to highlight how gun control enforcement actually operates:

[E]ach year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York’s licensing regime renders the Second Amendment a legal fiction.  Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.  That remains the effect of its enforcement by police and prosecutors today.

The consequences for our clients are brutal.  New York police have stopped, questioned, and frisked our clients on the streets.  They have invaded our clients’ homes with guns drawn, terrifying them, their families, and their children.  They have forcibly removed our clients from their homes and communities and abandoned them in dirty and violent jails and prisons for days, weeks, months, and years.  They have deprived our clients of their jobs, children, livelihoods, and ability to live in this country.  And they have branded our clients as “criminals” and “violent felons” for life.  They have done all of this only because our clients exercised a constitutional right....

In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases.  Non-Latino white people, who made up 70% of New York’s population, accounted for only 7% of such prosecutions.  Black people were also more likely to have monetary bail set, as opposed to release on their own recognizance or under supervision, even when comparing individuals with no criminal record.  When looking at only N.Y. Penal Law § 265.03(3) — which alleges only possession of a loaded firearm — 80% of people in New York who are arraigned are Black while 5% are non-Hispanic white. Furthermore, according to NYPD arrest data, in 2020, 96% of arrests made for gun possession under N.Y. Penal Law § 265.03(3) in New York City were of Black or Latino people.  This percentage has been above 90% for 13 consecutive years.

For another example, consider great recent work by Loyola University Chicago’s Center for Criminal Justice Research, Policy and Practice in recent reports on "Arrests in Illinois for Illegal Possession of a Firearm" and "Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois."  Here is key arrest data from this first report: "Black males between the ages of 18 and 24 had the highest arrest rate statewide; for every 100,000 Black male between the ages of 18 and 24, there were 2,404 arrests....  By comparison, the statewide arrest rate for White males between 18 and 24 was 307 per 100,000, and 1,108 per 100,000 for Hispanic males between 18 and 24."  And case-processing data from the second report details how Black offenders are more likely to be convicted on more serious charges: "[T]he majority (79%) of convictions for Class 2 felonies occurred in Cook County, whereas the majority (59%) of convictions for Class 3 felonies occurred outside Cook County.  Also, while the majority of those convicted of either felony class were Black individuals, a larger share of those convicted of the more serious Class 2 felony were Black (83%), compared to 64% of those convicted of Class 3 felony offenses."

And, lest one think these kinds of racial disparities are unique to state systems, the US Sentencing Commission published in March 2018 this potent report titled "Mandatory Minimum Penalties For Firearms Offenses In The Federal System."  Here is part of that report's "Key Findings" under the heading "Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group" (with my emphasis added):

Of course, the Supreme Court's eventual Second Amendment ruling in the Corlett case, no matter what it holds or says, is highly unlikely to dramatically alter the considerable racial disparities in modern criminal enforcement of gun prohibitions.  But, as debate over Second Amendment jurisprudence and gun control policy heats up in the coming months, I hope everyone keeps in mind the disconcerting demographic realities that consistently define modern criminal enforcement practice in the gun control space.

August 3, 2021 in Gun policy and sentencing, Race, Class, and Gender | Permalink | Comments (11)

"Empathy and Remote Legal Proceedings"

The title of this post is the title of this notable new paper authored by Susan Bandes and Neal Feigenson now available via SSRN.  Here is its abstract:

Do remote legal proceedings reduce empathy for litigants?  Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants.  Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. 

The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research.  However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.  On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers.  We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

August 3, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Rounding up just some notable Crime Report coverage and commentary

I have previously praised The Crime Report for its coverage and commentary on a range of criminal justice stories, and I try to make sure I check out this great resource regularly.  But today I got via email a weekly review of Crime Report pieces, and I realized I had missed a lot of important recent work.  These stories, in particular, seemed worth flagging for sentencing fans:

August 3, 2021 in Recommended reading | Permalink | Comments (0)

August 2, 2021

In 2021, homicides are now down in Boston, Cincinnati, Chicago, Dallas, Jacksonville, Kansas City, New York City, St. Louis and ...

this post is intended to highlight that one can now mine data from this webpage, where AH Datalytics has compiled a "YTD Murder Comparison" for 73 cities, to now tell an encouraging story about US homicide trends.  Critically, though, here I am cherry picking data, as there are many more cities on the list in which homicides are up rather than down.  And, of course, given last year's significant homicide increases in most cities, having some decreases in homicide in some cities is not something to celebrate robustly.

Still, the trends are continuing to be encouraging. The latest NYC data through Aug 1, 2021, show a dramatic decline in homicides over the last month, which has now turned 2021 into a down year for homicides in Gotham City.  As I have noted before, on July 12 in this tweet, Jeff Asher noted that the "change in murder relative to last year is dropping in cities with data.  A few weeks ago it was +22%, last week it was +18%, now it's +16%."  And now, as of early August, Asher's data show we are down to a 13% year-to-date increase, providing further reason to be hopeful that the COVID-era homicide spike may already be ending.

If these encouraging trends continue, we could end up seeing declines in homicides nationwide by the end of 2021.  Still, every homicide is one too many.  And, like with the pandemic, it seems wise not to make too many bold predictions about what will happen next month or the month after that in cities or elsewhere (where we lack great real-time crime data).  That said, I think the recent data trends in a number of big cities provide an important counter to the homicide spike narrative that has been prevalent over the last year and that has risked derailing some criminal justice reform efforts.  

Prior recent related post:

August 2, 2021 in National and State Crime Data | Permalink | Comments (7)

More encouraging(?) news from Capitol Hill on federal statutory criminal justice reform efforts

Axios has this interesting new piece headlined "Senate plans barrage on crime," which provides an encouraging update on the commitment of some key Senators to get additional federal criminal justice reforms to the finish line soon. Here are some details (with a bit of my emphasis added):

Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) are working to win Senate passage of a big criminal justice reform package this Congress.

Why it matters: Crime is spiking in big cities. Sen. Tim Scott (R-S.C.) is still working on a police reform measure.  The bipartisan dynamic duo atop the Senate Judiciary Committee is stepping up, passing three piecemeal bills out of their committee....

What they're saying: It's these three measures, Grassley told Axios, they "hope to package along with potentially other proposals to pass the Senate sometime this Congress." Durbin told Axios in his own statement that he's "committed to bringing these bills to the Senate floor this Congress."

What to watch: The final package also may include a measure for the thousands of inmates who were released to home confinement during the pandemic but will be forced to return behind bars when it's over, a Republican Senate staffer told Axios.  In addition, it may address sentencing disparities in crack and powder cocaine offenses.

One challenge will be the crime spike, which has the potential of sapping support from senators afraid of being branded soft on crime.  "Negotiations have always been an important part of enacting criminal justice reform, and this time will be no different, especially given the increase in crime we are seeing across the country,” Grassley said.

Between the lines: It's still early, but advocates said they need to take advantage of any opening they see for criminal justice reform — especially since police reform has stalled. They pointed to the House Judiciary Committee recently voting out the bipartisan EQUAL Act.  It would eliminate disparities in sentencing for powder and crack cocaine offenses and allow some inmates to appeal their sentence.  Even normally critical Republicans like Rep. Louie Gohmert (R-Texas) are cosponsors for the bill, which they take as a good sign.  That has supporters believing whatever emerges from the Senate can be packaged with House measures in conference committee and, ultimately, pass Congress.

I use the term "encouraging(?)" to describe this news in my post title because "this Congress" only means sometime before January 3, 2023.  Given how hard it is to get a divided Congress to complete anything these days, I suppose I should find any talk of any serious commitment to getting anything done to be just "encouraging."  But because of the modest nature of the "three piecemeal bills" primarily being discussed here (details in links below), I have been hoping that one or more of these bills might have a real change of getting to the desk of Prez Biden before the end of this year.

That all said, if these three Durbin/Grassley bills were to be combined with the EQUAL bill to reduce crack sentences and with some statutory fix to the pandemic home confinement problem, then I think all sentencing advocates would have something to really get excited about.  Notably, the FIRST STEP Act ended up having a lot of smaller reform proposals rolled into it, and I would love to see  five good reform proposals (and a few more) put together so that reform legislation can really improve a federal criminal justice system broken in so many ways.

Last but not least, I cannot complete this post without emphasizing, yet again, how effective implementation of any congressional reforms demands a well-functioning US Sentencing Commission.  The FIRST STEP Act is now nearly three years old, and the absence of a fully functioning USSC has impeded needed follow-up reforms and analyses that only the USSC can complete.  All the Durbin/Grassley bills and others in this space likewise need a working USSC to aid implementation (and a functional USSC could and would now be able to aid legislative analysis and consideration of various proposals).  But, with no USSC nominations from Prez Biden yet named, I am now fearing we may not ever get a full slate of Commissioners during "this Congress."

Some of many prior related posts:

August 2, 2021 in Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (3)

"Power to the People: Why the Armed Career Criminal Act is Unconstitutional"

The title of this post is the title of this notable new article authored by Rachel Paulose and now available via SSRN.  Here is its abstract:

In our constitutional democracy, it is the people who hold ultimate power over every branch of government, including authority over the judiciary through the jury trial guarantee of the Sixth Amendment.  However, the traditional view of recidivist statutes, including the federal Armed Career Criminal Act (“ACCA”), exempts the fact of a defendant’s prior convictions from the Sixth Amendment jury trial promise.  Specifically, prosecutors and federal judges have removed from juries and given to sentencing judges the power to determine prior crimes that enhance a defendant’s sentence under the ACCA by labeling a recidivist finding a sentencing factor rather than an element of the offense.

In this article, I argue the recidivist statute exemption, primarily exercised in federal law through the vehicle of Almendarez-Torres v. United States, violates the Constitution; defies the Court’s revived focus on the jury trial right through the Apprendi v. New Jersey line of cases requiring any fact that increases a defendant’s sentencing range to be found by the jury or admitted by the defendant at the guilty plea; and disregards the Court’s due process focus in the Taylor v. United States line of cases prohibiting factfinding under the ACCA.

I present my theory by examining the ACCA’s different occasions clause, a lesser known but potent provision that in theory imposes the ACCA’s mandatory minimum sentence of fifteen years only when recidivist crimes are “committed on occasions different from one another.”  In practice, judges impose the different occasions clause by engaging in complex judicial factfinding at sentencing by a lower preponderance of the evidence standard regarding the who, what, when, where, and why of prior crimes.  Judges who label the different occasions clause a sentencing factor rather than an element of the offense act in disregard of the jury trial right, due process guarantee, and legislative intent of the ACCA.  I argue that the Constitution requires the ACCA different occasions clause to be decided by a jury beyond a reasonable doubt in a bifurcated trial.  Judicial removal of the different occasions clause from jury scrutiny dramatically illustrates why a new approach enforcing the Sixth Amendment jury trial right to the ACCA different occasions clause is long overdue.

August 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

August 1, 2021

Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action)

The news a few weeks ago that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic continues to generate coverage and commentary.  Here is a round-up of just some recent pieces I have seen:

From Common Dreams, "Advocates Condemn Biden Plan to Send 4,000 Inmates Back to Prison After Pandemic"

From The Hill, "Inmates grapple with uncertainty over Biden prison plan"

From The Intercept, "Biden Has Said Pot Prisoners Should Be Free.  Now He’s Poised To Send Some Back To Prison."

From Politico, "Biden's prisoner's dilemma"

From The Root, "Biden Needs to Grant Clemency to the Over 4,000 People on Home Confinement"

It is understandable, but I still think quite unfortunate, that all of these stories focus almost exclusively on Prez Biden and his potential place in this story.  Most advocates have been talking up blanket clemency as the most efficient way to resolve this issue in order to keep the home confinement cohort from being sent back to prison after the COVID pandemic is over.  But, as I have highlighted in various posts, and stressed in this post titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.  This problem is fundamentally a statutory one created by Congress in the CARES Act, and it could be readily fixed by Congress simply by adding a sentence or two to pending pieces of legislation.

In addition, as I highlighted in this other post, another important option for case-by-case relief for members of this cohort is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce lengthy sentences and not merely allow these sentences to be served at home.  Consider the story told here by Jeanne Rae Green, who was transferred to home confinement in May 2020 after serving serving 6.5 years of a 12.5 year sentence for meth distribution.  It sounds like she and other members of this home confinement cohort could bring strong sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  The legal limbo in which Jeanne and others now find themselves could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison.  (Indeed, as I have previously mentioned, I think federal prosecutors could and should actively promote and support sentence reduction motions for now on home confinement at risk of being sent back to prison.)

I am pleased to see so many working so hard to ensure this issue garners continued attention, and I am hopeful that Prez Biden will use his clemency pen to bring relief to the home confinement cohort ASAP.  But in the meantime, I also hope that pressure will be brought to bear on all the others — from members of Congress to members of DOJ to members of the judiciary — who can and should also be doing more help this cohort.

Some prior recent related posts:

August 1, 2021 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Great new pieces in Akron Law Review's criminal justice reform issue

In the production of this recent post discussing a plea bargaining article by an Ohio Supreme Court Justice, I discovered that the current issue of the Akron Law Review is all about criminal justice reform with a set of articles all on topics that ought to be of interest to sentencing fans.  Here are the main articles from this issue:

"Sentencing by Ambush: An Insider's Perspective on Plea Bargaining Reform" by Justice Michael P. Donnelly

"The Continuing and Unlawful Exclusion of Qualified Ex-Offenders from Jury Service in Ohio" by Jordan Berman

"Life After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or Invalidated" by James R. Acker and Brian W. Stull

August 1, 2021 in Recommended reading | Permalink | Comments (0)