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August 21, 2021

Notable recent Prison Policy Initiative briefings on prison practices and their impacts

As I have said before, Prison Policy Initiative has many "briefings" related to prison policies and practices that are consistent must reads. Here I will flag some recent postings with post titles and summary intros:

"Unsupportive environments and limited policies: Pregnancy, postpartum, and birth during incarceration" by Leah Wang:

Making up for a serious gap in government data collection and understanding, researchers are discovering what pregnant incarcerated women should expect when they’re expecting (or when they give birth while in custody). Findings indicate that jails, prisons, and youth facilities have yet to adequately recognize pregnancy and postpartum needs either in policy or in practice.

"The Biden Administration must walk back the MailGuard program banning letters from home in federal prisons" by Wanda Bertram:

The Bureau of Prisons is considering a heartless, ineffective policy with far-reaching effects.

"New data: People with incarcerated loved ones have shorter life expectancies and poorer health" by Emily Widra:

Locking up the most medically vulnerable people in our society has created a public health crisis not just inside prison walls, but in the outside community and across the country: The health of individuals, families, and entire communities is clearly associated with incarceration.

August 21, 2021 in Prisons and prisoners | Permalink | Comments (1)

August 20, 2021

"Virtual Guilty Pleas"

The title of this post is the title of this new paper authored by Jenia Iontcheva Turner and available via SSRN.  Here is its abstract:

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health.  As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings.  To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns.  Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, impedes effective confrontation of witnesses, and prejudices the court’s perceptions of the defendant and witnesses.

Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings.  This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas.

Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coercive, or uninformed guilty pleas.  But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings.

The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over.  To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings.  Judges must review virtual pleas and plea agreements more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting.  These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid.

August 20, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

August 19, 2021

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

Some of many prior related posts:

August 19, 2021 in Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse"

The title of this post is the title of this new article on SSRN authored by Paul Robinson and Lindsay Holcomb. Here is its abstract:

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ.  There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome.  On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense.  In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account.  Should our assessment of an offender’s criminal liability be adjusted for their cultural background?  Their religious beliefs?  Their past life experiences?  The pedophilic tendencies they have always had but usually suppressed?

The question of how much to individualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to a justification, duress, and involuntary intoxication.  Indeed, it turns out that the problem of individualizing factors is present, if often obscured, in all criminal law doctrines of culpability, mitigation, and excuse.

The Article reviews the appeal of criminal law adhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized standard in some cases involving some doctrines.  But this leaves the jurisdiction’s criminal law in an awkward and unstable state.  Without a guiding principle for determining which individualizing factors are to be taken into account under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases.  The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises.

August 19, 2021 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Federal district judge dismisses illegal reentry prosecution holding "Section 1326 violates the Equal Protection Clause of the Fifth Amendment"

Though not exactly a sentencing ruling, late yesterday US Chief District Judge Miranda Du of Nevada issued a big decision in US v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev. Aug 18, 2021) (available here), concerning a statute that is the basis for tens of thousands of federal sentences every year.  Here is the start of the 43-page opinion in Carrillo-Lopez and its substantive conclusions:

On June 25, 2020, Defendant Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b) (“Section 1326”).  Before the Court is Carrillo-Lopez’s motion to dismiss the indictment (the “Motion”) on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).  On January 22, 2021, the Court heard oral argument on the Motion, and on February 2, 2021, the Court held an evidentiary hearing.  Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus — and as further discussed below — the Court will grant the Motion....

Carrillo-Lopez has established, and the government concedes, that the Act of 1929 was motivated by racial animus. The government does not assert the 1952 Congress addressed that history when it reenacted Section 1326.  Moreover, the government fails to demonstrate how any subsequent amending Congress addressed either the racism that initially motivated the Act of 1929 or the discriminatory intent that was contemporaneous with the 1952 reenactment.  The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326. Instead, the amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach.  Accordingly, the Court cannot find that subsequent amendments somehow cleansed the statute of its history while retaining the language and functional operation of the original statute.

In conclusion, the government has failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.  Moreover, the government’s alternative arguments — that a nondiscriminatory motive was “plain” or that subsequent amendments somehow imply the racial taint was cleansed — are not supported by caselaw nor borne out by the evidentiary record. In sum, on the record before the Court, the Court can only conclude that the government has not met its burden.  Because Section 1326 violates the Equal Protection Clause of the Fifth Amendment, the Court will grant Carrillo-Lopez’s Motion.

Scott Greenfield has an effective summary of the ruling in this new post at Simple Justice.  He notes that it "seems almost inconceivable that the Ninth Circuit won’t reverse this decision," but also highlights that "Judge Du’s decision makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine."  And here is some effective local media coverage:

This recent Quick Facts report from the US Sentencing Commission indicated that there were over 22,000 illegal reentry sentences imposed in Fiscal Year 2019, and nearly 20,000 such sentences in FY 2020. That means that, on average, in federal courts about 400 of these sentences are being imposed each and every week. Because Judge Du's opinion is not binding on other courts, this new decision will not likely disrupt this case flow dramatically. But I suspect it will be (and maybe already is) getting raised in new filings in district courts around the country.

August 19, 2021 in Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

August 18, 2021

Authors of provocative paper retract judge-specific claims about "most discriminatory" federal sentencing judges

I expressed concerns in this post last month about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges under the title "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  In addition to articulating some first-cut concerns in my initial post, I also solicited and published here an extended post by Prof. Jonah Gelbach about the work based on this Twitter thread criticizing the paper.  

This new Twitter thread by one of the authors reports that the paper has now been revised to remove judge-specific claims as to the "most discriminatory" sentencing judges, and it is now re-titled "Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges."  This new New Jersey Law Journal article, headlined "Backpedaling: Authors of Study on Racist Rulings Retract Their Claims Against Pennsylvania, New Jersey Judges," provides some more details:

The authors of a study that accused some federal judges of extreme racial and ethnic bias in sentencing have withdrawn their conclusions about specific jurists following criticism of their methodology.

An earlier version of the study, published in July by the Institute for the Quantitative Study of Inclusion, Diversity and Equity, said two Eastern District of Pennsylvania judges and one from New Jersey give Black and Hispanic defendants sentences that are twice as long as those they give to whites.

But a revised version of the study, posted Tuesday, asks readers to disregard the references to specific judges....  “A previous version of this work included estimates on individually identified judges. Thanks to helpful feedback, we no longer place enough credence in judge-specific estimates to make sufficiently confident statements on any individual judge.  We encourage others not to rely upon results from earlier versions of this work,” the revised version of the study said.

The study’s lead author, Christian Michael Smith, explained on Twitter that, “while our initial paper appreciated how random chance, systematic missing data patterns, and/or hidden structural factors for sentencing could affect judge rankings, we now regard the following possibility as less remote than we initially regarded it: that a judge who is actually unproblematic could end up on the extreme end of our discrimination estimates, due to random chance, systematic missing data patterns, and/or hidden structural factors for sentencing.”...

Gelbach, in an email, said of the retraction, ”I applaud the authors for removing the ranking of judges’ sentencing practices and for making clear that people should not rely on those rankings. Given the data limitations, that was the right decision for them to make.”

Prior related posts:

August 18, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Environmental Indifference"

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

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution.  Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development.  The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials.  This work, using radon exposure litigation as a case study, explains how environmental harms in prisons threaten lives and violate the Constitution.

August 18, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

Regular readers know I do not blog much these days about federal sentence reasonableness review because there are not that many blogworthy opinions.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and all but a few dozen involve miscalculation of the guideline range.  The government rarely appeals, though it has a much better success rate in the relatively few appeals it brings each year. 

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

August 18, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable accounting of "widespread support" for the death penalty in public polling

Joseph Bessette and J. Andrew Sinclair have this lengthy new post at Real Clear Policy discussing public polling in the US about capital punishment. The lengthy piece, which I recommend in full, is titled "New Evidence Confirms Widespread Support for the Death Penalty." Here are a few excerpts (with few links from the original):

On July 1, the Biden administration halted the use of the federal death penalty, reversing the Trump administration’s 2020 resumption of executions.  The announcement of a moratorium pending a review of “policies and procedures” is less permanent than legislative abolition, but it is unlikely the president could get Congress to end the death penalty. Many Americans support capital punishment; in fact, our research shows that public support for the death penalty is even greater than commonly reported....

The Pew Research Center recently reported that 60% of Americans support the death penalty for murder.  Gallup, which has been asking Americans about capital punishment since the late 1930s, gauges current support at 55%.  These are clear majorities but well below the modern peak of around 80% in the mid-1990s.  Political choices have begun to reflect this systematic decline in support. Despite championing the death penalty in the 1990s, President Biden joined nearly every other Democratic presidential candidate in calling for its abolition in his 2020 campaign.  Virginia (in 2021) and Colorado (in 2020), both states trending towards the Democratic Party, recently abolished the death penalty.

Although the two of us disagree about whether capital punishment should be public policy in the United States, we agree that a nuanced approach is required for understanding public opinion on this issue.  The standard type of death penalty question, asked over and over again for more than half a century, leaves policymakers, scholars, and citizens with an incomplete picture of support, or potential support, for the death penalty.  We are far from the first to observe that the answer you get depends on the question you ask.  We have begun a project, though, of systematically trying to understand what these different responses can tell us about how many American voters support capital punishment. 

Both Gallup and Pew ask a generic question. Gallup asks, “Are you in favor of the death penalty for a person convicted of murder?” Although Pew gives more options to measure level of support, its question is otherwise nearly identical: “Do you strongly favor, favor, oppose or strongly oppose the death penalty for persons convicted of murder?” Other polling organizations tend to ask versions of this question as well. Yet, these questions do not distinguish between most murders and the specific kinds of aggravated murders that make someone eligible for the death penalty in the 27 American states that retain capital punishment.  If you oppose the death penalty for most murders, but not all murders, how would you answer the generic question?...

While we continue to conduct survey research on the death penalty, we wanted to share our main findings from surveys conducted in June 2019 and October 2020 because of the renewed debate of recent months and years. (We present our key findings in a report released by the Rose Institute of State and Local Government, Claremont McKenna College.)  In each survey, we used a three-part approach to gauging support for the death penalty.  First, we asked a version of a general question about the death penalty.  Second, we asked all respondents about the appropriateness of the death penalty for particular aggravated murders.  Third, we asked respondents for their opinion about a death penalty policy decision in their own states....

To provide a rough summary of our findings: We can divide the electorate into three groups of different sizes.  About a fifth of American voters oppose the death penalty in nearly every circumstance: These appear to be the truly committed opponents.  About three fifths reliably support the death penalty: they favor it in theory and also want to have a death penalty law in their state.  A final fifth of the American electorate approves of the death penalty in some way, in theory, but does not necessarily want the death penalty in their state. 

Framed this way, there is more support for the death penalty than the 55% (Gallup) or 60% (Pew) numbers might suggest. This is not to say those numbers are “wrong” (with similar questions, we find similar results), but just that they understate death penalty support for the kinds of aggravated murders that make an offender eligible for capital punishment in American states.  If a substantial proportion of death penalty “opponents” — as measured by Gallup and Pew — actually approve, at least theoretically, of the death penalty in some cases, their opposition is much softer than might be assumed.  As prior research on this subject has demonstrated, changing crime rates or different media coverage might drive up support again, and these types of voters could potentially be satisfied with laws that focused on a few highly aggravated murders, provided special safeguards against mistaken convictions, or had other features to mitigate their concerns about implementation.  Truly committed opponents are a small minority of voters. 

I am always glad to see more thorough efforts to gauge public opinion in a more granular way. But I wonder if polling on the death penalty could be even more accurate if persons were informed about the considerable costs and inevitable delays that always attend the application of the death penalty in the US.

In some sense, many of these issues will be on display this fall when the Supreme Court considers the reversal of the death sentence given to the Boston Marathon bomber in United States v. Tsarnaev.  Tsarnaev committed his horrific crime now more than eight years ago, and I suspect the many millions spent on lawyers and court actions to fight over a death sentence might seem like a waste of resources even to those who would say they generally support capital punishment in a poll.  Or maybe the awfulness of Tsarnaev's crime might lead even more persons to be death penalty supporters no matter the costs and delays.

August 18, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

August 17, 2021

“The Case for a Presidential Task Force on 21st Century Prosecution"

The title of this post is the title of this notable new white paper produced by Fair and Just Prosecution.  Here is its executive summary:

THE NEED FOR A PRESIDENTIAL TASK FORCE ON 21ST CENTURY PROSECUTION

The United States currently incarcerates its residents at the highest rate of any democratic country in the world.  This system of mass incarceration disproportionately impacts Black and brown Americans, disrupts communities, and bloats budgets, all while impeding the mission of public safety it purports to promote.  Prosecutors wield a vast amount of discretion and authority within the criminal legal system — and therefore share responsibility for those systemic failings — yet they also hold the power to bring about systemic transformation.  The Biden-Harris administration has a vital role to play in catalyzing innovation and helping prosecutors nationwide chart a path to greater justice and equity for their communities.  A new generation of local elected prosecutors are modeling that potential and are reimagining the role of prosecutors. We propose a Presidential Task Force on 21st Century Prosecution to build on — and help perpetuate — that movement.

PROPOSED FOCUS

Seventeen pillars would serve as the basis for a series of hearings and focus the Task Force’s work:

  • Understanding the historical legacy of the prosecutor
  • Promoting deflection, diversion, and shrinking the system
  • Advancing racial and ethnic justice
  • Addressing the poverty penalty and bail reform
  • Promoting harm reduction, saving lives, and drug policy reform
  • Misdemeanor justice
  • Better serving crime survivors
  • Understanding, preventing, and addressing violence
  • Juvenile and young adult justice
  • Preventing officer-involved shootings and enhancing police accountability
  • Improving conditions of confinement
  • Implementing post-conviction justice, fair sentencing, and sentencing review
  • Accounting for collateral consequences and promoting expungement
  • Addressing mass supervision and improving reentry
  • Envisioning success, metrics, and culture change
  • Ensuring ethics, accountability, and transparency
  • Propelling change and investing in transformation....

GOALS AND OUTCOMES

We recommend that the Task Force produce:
  • A final report that identifies successful prosecutorial reforms and innovation, lays out key challenges to implementing change, details promising practices, and offers specific and tangible goals paired with policy and program recommendations that could include improving the safety and well-being of our communities, dramatically reducing jail and prison populations, ending racial disparities, and enhancing transparency and accountability;
  • A strategic roadmap to incentivize and fund change and innovation, including by encouraging and enabling specific federal laws, policies, resources, and grants to help support and propel systemic transformation; and
  • A concrete implementation plan, including the creation of an implementation oversight group and ongoing technical assistance from key federal government bodies and leaders.

August 17, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Noticing the notable number of public defenders among Prez Biden's judicial nominations

In this post a few weeks after Prez Biden assumed office, I asked "So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?". In that post, I noted the data showing the federal judiciary is badly skewed with a disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience, and I was hopeful Prez Biden would look to bring more balance to the federal bench.

Just over six month later, two new pieces detail that Prez Biden's track record here is pretty good and why this should be celebrated. Consider first this Bloomberg Law piece headlined "Public Defender Bench Aspirations Emboldened by Biden Nominees."  Here is an excerpt:

President Joe Biden’s nomination of several public defenders is part of a broader effort to add professional and demographic diversity to the judiciary.... Many federal public defenders who’d felt shut out from the bench now see their skills getting overdue recognition by the political establishment.  Biden’s nominations also may convince law students that “they’re not closing that door to being a judge just because they might pursue their public defender aspirations,” said Rachel Barkow, a New York University law professor.

Twelve of Biden’s 33 nominees so far for lifetime federal judicial appointments have public defender experience, and a handful of them have been confirmed.  They include Ketanji Brown Jackson, a former D.C. federal trial court judge and federal public defender, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. Candace Jackson-Akiwumi, a former federal public defender in northern Illinois, was confirmed to the Chicago-based Seventh Circuit.

And at MSNBC, Chris Geidner has this new opinion piece headlined "Biden outshines Trump — and Obama — by appointing public defenders as judges." Here are excerpts:

Last weekend, the Senate confirmed Eunice Lee to a judgeship on the U.S. Second Circuit Court of Appeals.... Lee’s confirmation is remarkable for one due the fact that the judicial landscape is completely unrepresentative of the legal profession — and has been for a very long time. Her confirmation is a single, but important, effort to confront this imbalance.

If that sounds dramatic, just look at the number of judges with backgrounds as prosecutors.  As things stand, they overwhelmingly outnumber those with backgrounds as public defenders.  That imbalance is even more dramatic if you’re looking more broadly at whether the judge’s experience before taking the bench was in representing the government in any role or opposing it....

The law as we know it — or, more bluntly, as it is — is dramatically skewed by the experience imbalance among our judges. Broad swaths of the law like the court-created doctrine of qualified immunity — the protection against most lawsuits that government officials, particularly police officers and prison guards, receive — have been created by judges whose experience was often as prosecutors or otherwise representing the government’s interests instead of individual people’s interests....

Biden’s election over Trump raised hopes for a course correction in the federal judiciary. More than that, there also are the beginnings of change on the state level. This week, lawmakers in Virginia approved eight new judges to an expanded appeals court in the commonwealth, adding “two current and former public defenders and a longtime legal aid attorney — professional backgrounds that have never before been represented on one of the state’s high courts.”

These steps are good, but we can’t lose sight of the fact that they are just that: steps. Let’s assume that Biden continues nominating significant numbers of public defenders to the bench and, more unlikely, that other states take Virginia’s lead regarding their state courts. Even then, this imbalance on the bench would continue for the near future. It would take two or three presidencies, and an overwhelming number of governors and state lawmakers working to change their judiciaries, to see a real shift in the scales of justice.

These new judges being added to the mix, though, will nonetheless have an incredible opportunity, a chance to bring new perspectives to their colleagues and, through their opinions, to those of us who live under their rulings. They will be in the position to put some intellectual weight on the other side of the scale.

A few of many recent prior related posts:

August 17, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Highlighting the need and value of investing in criminal justice infrastructure in the form of good data

Amy Bach and Jeremy Travis have this notable new Hill commentary headlined "Don't ignore the infrastructure of criminal justice." I recommend the piece in full, and here are excerpts:

Advocates for criminal justice reform from different fields and backgrounds are all reaching the same conclusion: Any attempt at real, lasting change will require a significant investment in our ability to collect, store, and share data. We cannot confirm that new policies work without tracking their outcomes.  We cannot address racial injustice without data about policing practices, court processes, jail populations, and prison systems....

The country’s criminal justice data infrastructure is antiquated and crumbling.  State by state, we cannot track information about the people who are processed through our courts and jails.  Measures for Justice recently released a report documenting the extent of the country’s criminal justice data gap based on an analysis of 20 states.  In seventeen, court data on indigent defendants was entirely unavailable. In eighteen, data about the pretrial process, such as bail, detention and release practices, were practically nonexistent.  These findings scratch the surface of a nationwide problem: We can’t access information necessary to measure the success (or failure) of politically controversial reforms, such as the elimination of cash bail, or hold informed, productive debates about the next steps.

Similarly, as the nation grapples with the spike in gun violence, it remains striking how little we actually know about the use — and misuse — of firearms.  Last year the Expert Panel on Firearms Data Infrastructure, convened by the nonpartisan and objective research organization NORC at the University of Chicago, released a report documenting how the federal government can repair and expand our disordered and segmented gun data systems.  Any reasoned debate on firearms policy requires a shared set of facts — and the nation simply doesn’t have those facts....

[Current political debates] all underscore the need to improve data infrastructure for our sprawling, uncoordinated, and incredibly expensive criminal justice system.  State and federal spending on criminal justice has grown almost 400 percent over the past 20 years — one of the fastest-growing line items in state budgets — yet we remain unable to answer simple questions about how it functions....

Closing the country’s data gap will require setting national standards for data collection and release.  Congress also needs to provide support and incentives for the local agencies that all too often rely on outdated data collection systems — if they have a system at all.  The task may seem daunting, but it is well within the abilities — and budget — of Congress and the White House to tackle....

But without a solid foundation for evidence-based policy making, it becomes impossible to track outcomes.  Reform is stifled.  Racial discrepancies continue.  Failed promises and opaque systems undermine public trust.  In the same way that roads or education are foundational to a larger economic project, good data serve as a foundation for the larger project of public safety and racial justice.  It is a project that Congress cannot ignore.

August 17, 2021 in Data on sentencing, Who Sentences | Permalink | Comments (0)

"Can Restorative Justice Conferencing Reduce Recidivism? Evidence From the Make-it-Right Program"

The title of this post is the title of this new NEBR working paper authored by Yotam Shem-Tov, Steven Raphael and Alissa Skog. Here is its abstract:

This paper studies the effect of a restorative justice intervention targeted at youth ages 13 to 17 facing felony charges of medium severity (e.g., burglary, assault).  Eligible youths were randomly assigned to participate in the Make-it-Right (MIR) restorative justice program or to a control group in which they faced criminal prosecution.  We estimate the effects of MIR on the likelihood that a youth will be rearrested in the four years following randomization.  Assignment to MIR reduces the likelihood of a rearrest within six months by 19 percentage points, a 44 percent reduction relative to the control group.  Moreover, the reduction in recidivism persists even four years after randomization.  Thus, our estimates show that juvenile restorative justice conferencing can reduce recidivism among youth charged with relatively serious offenses and can be an effective alternative to traditional criminal justice practices.

August 17, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

August 16, 2021

An effective (but already quite dated) reminder that US mass incarceration has been getting a bit less mass (but still globally exceptional)

FT_21.08.12_Incarceration_2John Gramlich over at Pew Research Center has this effective new posting under the headline "America’s incarceration rate falls to lowest level since 1995." The piece looks at some data on US incarceration rates and puts them in a bit of historical and global context.  Unfortunately, the analysis is drawn from data as of the end of 2019, and a heck of a lot has obviously changed over the last 20 months.  In particular, as documented through March 2021 by the Vera Institute, there is a reasonable basis to think incarceration rates may have dropped an addition 10 to 15 percent (or more) since the end of 2019.  Still, the Pew discussion sets a useful marker for where we were heading into the pandemic, and here is some of the discussion (with links from the original):

The U.S. incarceration rate fell in 2019 to its lowest level since 1995, according to recently published data from the Bureau of Justice Statistics (BJS), the statistical arm of the Department of Justice. Despite this decline, the United States incarcerates a larger share of its population than any other country for which data is available.

At the end of 2019, there were just under 2.1 million people behind bars in the U.S., including 1.43 million under the jurisdiction of federal and state prisons and roughly 735,000 in the custody of locally run jails. That amounts to a nationwide incarceration rate of 810 prison or jail inmates for every 100,000 adult residents ages 18 and older.

The nation’s incarceration rate peaked at 1,000 inmates per 100,000 adults during the three-year period between 2006 and 2008. It has declined steadily since then and, at the end of 2019, was at the same level as in 1995 (810 inmates per 100,000 adults).

The number of prison and jail inmates in the U.S. has also decreased in recent years, though not as sharply as the incarceration rate, which takes population change into account. The estimated 2,086,600 inmates who were in prison or jail at the end of 2019 were the fewest since 2003, when there were 2,086,500. The prison and jail population peaked at 2,310,300 in 2008....

A variety of factors help explain why U.S. incarceration trends have been on a downward trajectory. Violent and property crime rates have declined sharply in recent decades despite a more recent increase in certain violent crimes, especially murder. As crime has declined, so have arrests: The nationwide arrest rate has fallen steadily over the long term.

Changes in criminal laws, as well as prosecution and judicial sentencing patterns, also likely play a role in the declining incarceration rate and number of people behind bars. In late 2018, for example, then-President Donald Trump signed a law aimed at reducing the federal prison population. In its first year, the law led to shorter sentences for thousands of federal offenders and earlier release dates for many others, according to a 2020 report from the U.S. Sentencing Commission.

Despite these downward trends, the U.S. still has the highest incarceration rate in the world, according to the World Prison Brief, a database maintained by the Institute for Crime & Justice Policy Research at Birkbeck, University of London.  The database compares incarceration rates across more than 200 countries and territories using publicly available data for each jurisdiction....

In addition to its high rate of incarceration, the U.S. also has the largest overall number of people behind bars. With more than 2 million jail and prison inmates, the U.S.’s total incarcerated population is significantly greater than that of China (approximately 1.7 million) and Brazil (about 760,000).  But data limitations in China and other countries make direct comparisons with the U.S. difficult. The World Prison Brief notes, for instance, that China’s total excludes people held in pre-trial detention or “administrative detention” — a group that may number more than 650,000. China’s total also excludes the estimated 1 million Uyghur Muslims who are reportedly being detained in camps in the Xinjiang autonomous region.  If these two groups were added to the total, China would far surpass the U.S. in terms of its total incarcerated population.

August 16, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (1)

En banc Third Circuit upholds 65-year juvenile sentence in Grant more than three years after bold panel ruling

In this post way back in April 2018, I noted a remarkable Third Circuit panel opinion in US v. Grant, addressing the application of Eighth Amendment limits on juvenile sentences while vacating  a 65-year federal prison term for a 16-year-old offender.  Among other points, the original split panel opinion in Grant held that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  But six months later, as detailed in this October 2018 post, the active judges voted for rehearing en banc in Grant upon the government's petition and the original opinion and judgment were vacated. 

Now, nearly three years later, the en banc Third Circuit has finally ruled in favor of the government US v. Grant, No. 16-3820 (3d Cir. Aug. 16, 2021) (available here).  Here is how the en banc majority opinion in Grant now starts:

A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile.  The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines.  Parole is unavailable to those convicted of federal crimes, so the sentence effectively condemned Grant to die in prison — with proof of circumstances warranting compassionate release his only hope.

In 2012, the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460, which held that the Eighth Amendment permits a life-without-parole (“LWOP”) sentence for a juvenile homicide offender only if the sentencer could have imposed a lesser punishment based on the offender’s youth at the time of the offense.  Later, the Court made Miller retroactive to cases on collateral review.  Montgomery v. Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sentence was imposed mandatorily, Miller entitled him to a new sentencing.

At resentencing, the District Judge noted Grant’s minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability.  The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant’s total sentence was effectively reduced to 65 years.

Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not.  But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant’s youth at the time of his offenses. And that is what he received. So we will affirm Grant’s 65-year sentence.

In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts.  But Grant did not preserve this argument, and the District Court’s failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.

This opinion was a long time coming no doubt in part because the en banc court likely was eager to await the Supreme Court's latest pronouncement on the application of Miller. Recall that SCOTUS granted cert in the Malvo case to address the proper retroactive application of Miller way back in March 2019, though only finally spoke on this topic in the replacement Jones v. Alabama case this past April.  Unsurprisingly, this Grant ruling leans heavily on Jones, and seeing how Jones is being applied in this context provides one reason for sentencing fans to check out this new ruling.

But hard-core Eighth Amendment fans will want to make sure they also check out some of the additional opinions, particularly a 15-page concurrence authored by Judge Hardiman and joined by three other judges.  That opinion attacks the Supreme Court's “evolving standards of decency” test for having a history "marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People." And it concludes this way:

The story of the evolving standards of decency test — from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land — has created more problems than it has solved.  Its inscrutable standards require judges to eschew the law as written in favor of moral sentiment.  The only constant is that more and more laws adopted by the People’s representatives have been nullified.  And the People have no practical way to reverse this contrived ratchet.
This Court, relying on a careful review of the Supreme Court’s Eighth Amendment precedents, reaches the right conclusion for the right reason.  But if the Supreme Court continues to apply “the evolving standards of decency” test, I wonder what will be the next stop on this runaway train of elastic constitutionalism?  As Chief Justice Roberts cautioned nine years ago: there is “no discernable end point.”

August 16, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Might "big change" in New York leadership include a better record on clemency?

I got to thinking today that the coming resignation of Andrew Cuomo will end a particularly disappointing recent chapter in state clemency activity.  Notably, in the wake of Prez Obama;s 2014 Clemency Project, NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see posts here and here).  But, after talking the talk, Gov Cuomo thereafter never actually delivered significant results.  Here were a few prior posts covering some of Gov Cuomo's pre-COVID failings as of January 2020:

And here are just a few of a number of press pieces from the COVID era highlighting that Gov Cuomo's clemency record did not improve during the pandemic: "While COVID-19 Spreads In NY Prisons, Loved Ones On The Outside Plead With Cuomo For Clemency" and "Prisoners Hoping for Mercy Place Little Faith in Cuomo."  (It is also worth recalling a story detailing that Gov Cuomo was not inspiring as to other prison policies during the pandemic: "Judge says Cuomo's prison COVID-19 vaccine policies were 'arbitrary and capricious'.")

The headline of this recent CBNC piece about the leadership transition in Albany, "Kathy Hochul vows big change from ‘toxic’ Cuomo administration, will fire ‘unethical’ staffers," has me hoping that "big change" in Albany will include a whole new approach to clemency.  After very disappointing work by Gov Cuomo, I hope that a new Gov brings some new hope to clemency advocates in New York.  For a host of reasons, I think it would be unrealistic to expect the incoming Gov to prioritize clemency issues right away, but I also think advocates would be wise to urge her to use her clemency pen as another way to distinguish herself from her predecessor.

August 16, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

August 15, 2021

Various tales from prison in incarceration nation

A variety of headlines caught my eye this week on topics relating prisons and prisoners.  Here is a round up of some of them:

From ABA Journal, "Private prisons are a failed experiment with 'perverse and immoral incentives,' ABA House says in calling for their end"

From the AP, "Transgender inmates' rights violations 'ongoing' in IL prisons, federal judge says"

From the California Globe, "California Supreme Court Rules 5-2 That Prisoners Cannot Possess Marijuana While In Prison"

From MarketWatch, "Exclusive: Bernie Madoff’s harrowing final days: hallucinations, dire medical conditions, and waiting for the end to come"

From the Marshall Project, "These Meds Prevent Overdoses. Few Federal Prisoners Are Getting Them."

From the Marshall Project, "Stopping Violence Over Prison Phone Time? There’s an App for That."

From Insider, "COVID allowed Raquel Esquivel and 4,500 others to be released from overcrowded federal prisons. So why is she back behind bars?"

From NBC News, "Prison suicides have been rising for years. Experts fear the pandemic has made it worse."

From Quartz, "Prisons are where America most needs vaccine mandates"

From Slate, "Prisons Are Increasingly Banning Physical Mail"

From the Washingtonian, "Accused January 6 Rioters Complain About Conditions in DC Jail"

August 15, 2021 in Prisons and prisoners | Permalink | Comments (2)

"Bridging the Gap: A Practitioner’s Guide to Harm Reduction in Drug Courts"

The title of this post is the title of this notable new report from the Center for Court Innovation and authored by Alejandra Garcia and David Lucas. Here is the first part of the report's introduction:

Drug law reforms across the country are trending toward decriminalization and public healthinformed responses, and away from the carceral strategies of the past. These historic changes are likely to impact drug court operations significantly. Fewer drug-related arrests means fewer referrals to drug courts, and a lighter hand in sentencing will reduce the legal leverage that has long been used to incentivize participation. The overdose crisis, COVID-19, and renewed demands for racial equity and legal system transformation have also given rise to a more expansive discourse around drug use, mental health, and community safety. Alongside this shift, harm reduction initiatives are being supported at the local, state and federal level on a scale never seen before.

At their inception, drug courts represented a new way of thinking about the intersection of addiction and crime in society. Offering a treatment alternative to jail or prison, the model aimed to address the harms — and ineffectiveness — of incarcerating drug users. Today, however, criminal legal system reformers are calling into question some of the model’s most defining features, which remain largely coercive and punitive. Moving forward, drug courts can expect to face increasing pressure from public health experts and harm reduction advocates to abandon the abstinence-only model, eliminate jail sanctions, and overhaul their drug testing protocols.

This document is an attempt to provide a fresh perspective on several foundational drug court practices and the inherent challenges of this work. It argues that the most effective way for drug courts to evolve — and do less harm — involves integrating the practices and principles of harm reduction. Drug courts and the harm reduction movement will continue to co-exist for some time and face similar system barriers while serving many of the same people. As such, this document represents a conversation that is new and necessary — one that aims to bridge the gap between these contrasting paradigms for the benefit of those who participate in drug courts.

August 15, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)