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October 2, 2021

"Financial Health and Criminal Justice: The Stories of Justice-Involved Individuals and Their Families"

The title of this post is the title of this notable new report from the Financial Health Network. Here is how its introduction gets started:

The United States has the highest prison and jail population, and the highest incarceration rate, in the world.  In 2020, approximately 2.3 million Americans were incarcerated, and, every year, over 10 million people are arrested or charged with crimes.  While these numbers are staggering in their size, they are made up of individuals — each with a unique and complicated human story, each with a family or social network impacted by their involvement in the criminal justice system.  The consequences of involvement with the U.S. criminal justice system run deep and wide — socially, physically, psychologically, and financially — often lasting well beyond release, and usually impacting more than just the individual arrested or incarcerated.  In addition, the criminal justice system disproportionately impacts people from low-income communities and communities of color.

The Financial Health Network presents a look into some of these lives, with particular focus on how their financial health affects their ability to navigate the criminal justice system, and how that system affects their financial health once they’re able to re-enter society.  In partnership with the University of Southern California’s (USC) Center for Economic and Social Research, we collected stories directly from 36 individuals impacted by this system, and learned how navigating the criminal justice system impacts the financial health of justice-involved individuals and their families.  These individuals and their families must traverse a complex and expensive set of processes, whether they’re managing the initial financial shock of arrest and detainment, juggling associated financial obligations, searching for limited employment opportunities upon release, or handling the added expenses or lost income of having a family member who is incarcerated.  Through all this, these individuals and their families often rely on their social networks to get by.

The following five briefs examine the experiences of individuals and their families as they manage the multiple costs of pretrial, incarceration, and re-entry, as well as the challenges associated with securing income, employment, and accessing financial services upon their release.

October 2, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

October 1, 2021

After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?

I was very excited when earlier this week the US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences.  I was also pleased to see this follow-up press release from my GOP senator headlined "Portman, Senate Co-Sponsors Laud House Passage of EQUAL Act."  Here is the text:

U.S. Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT), the bipartisan Senate sponsors of the EQUAL Act, issued the below statement following the passage of the EQUAL Act in the House of Representatives by a bipartisan vote of 361-66.

“Today, House Republicans and Democrats joined together in passing the EQUAL Act, legislation that will once and for all eliminate the unjust federal crack and powder cocaine sentencing disparity.  Enjoying broad support from faith groups, civil rights organizations, law enforcement, and people of all political backgrounds, this commonsense bill will help reform our criminal justice system so that it better lives up to the ideals of true justice and equality under the law.  We applaud the House for its vote today and we urge our colleagues in the Senate to support this historic legislation.”

Ohio eliminated the crack-powder sentencing disparities back in 2011.

Along with bipartisan support in Congress, this landmark legislation has support from groups across the political spectrum, including the National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Digital Liberty, Faith and Freedom Coalition, ALEC Action, R Street Institute, National Association for Public Defense, American Civil Liberties Union, Sentencing Project, Fair Trials, FreedomWorks, Center for American Progress, Drug Policy Alliance, Jesuit Conference, Black Public Defender Association, Dream Corps JUSTICE, Federal Public and Community Defenders, Innocence Project, National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, Taxpayers Protection Alliance, and Tzedek Association.

So three notable GOP Senators from pretty red states are co-sponsors of the EQUAL Act in the Senate, and a wide array of right-leaning advocacy groups are also eager to see this pass.  And, to highlight again the House vote specifics, roughly twice as many GOP reps voted for the EQUAL Act as voted against it.  If this same breakdown happened on the Senate side, there would be over 80  total votes for passage of the EQUAL Act in the Senate.  Even if only half of GOP Senators support the EQUAL Act, that makes 75 votes in the Senate.  And, of course, only 10 GOP votes would be needed to end any filibuster, which I presume Senator Cotton would launch to gum up the works, to permit a floor vote.

So, if ever there was a federal criminal justice reform bill that should be a relatively easy lift, I would hope this is it.  And yet, I have not seen any advocates talk as if Senate action is imminent or even all that likely.  As I mentioned to a Vice News reporter who wrote here about the House vote, an average of more than four persons are sentenced in federal court for crack offenses every single week day, and many tends of thousands of (disproportionately black) offenders have been sentenced unfairly now for a full 35 years since the crack/powder disparity first became law way back in 1986.  There is no need or value to waiting to finally make all federal cocaine offenses subject to the same sentencing rules, and so I hope the Senate might move swiftly.  But, as is always the case it seems when in comes to Congress, I do not think there is reason to be optimistic.  Sigh.

(Oh, and more more point while I am bemoaning Beltway activities (or lack thereof): even if the EQUAL Act were to move forward quickly in the Senate, I do not think it currently provides emergency authority for the US Sentencing Commission to change the crack guidelines AND the US Sentencing Commission is currently inert until Prez Biden nominates a slate of Commissioners and those folks garner Senate confirmation.  Fortunately, because the guidelines are advisory, district judges could ignore the disparate crack guidelines even while still in place after passage of the EQUAL Act.  But then again, those disparate guidelines can and should be ignored now, and yet they are still followed in many cases and still create a benchmark that shapes and distorts the sentencing process.)

October 1, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (3)

September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

TRAC releases intriguing new report on "Equal Justice and Sentencing Practices Among Federal District Court Judges"

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University is a research center that keeps track of a lot of federal criminal case processing data. Today TRAC released this notable short data report under the title "Equal Justice and Sentencing Practices Among Federal District Court Judges." Here are snippets from the start and end of the report:

This report examines very recent data on federal trial judges and their sentencing practices. The existence of judge-to-judge differences in sentences of course is not synonymous with finding unwarranted sentencing disparity....  But a fair court system always seeks to provide equal justice under the law, working to ensure that sentencing patterns of judges not be widely different when they are handling similar kinds of cases.

In reality, sometimes the goal of equal justice under the law is achieved, and other times the actual sentences handed down depart markedly from this goal. Using case-by-case, judge-by-judge, data updated through December 2020, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur, and courthouses where there is wide agreement in sentencing among judges.

While special circumstances might account for some of these differences, half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.

Results further showed that currently seven (7) federal courthouses out of 159 compared had perfect agreement among judges in the typical or median sentences assigned. In an additional thirty (30), judge-to-judge sentences differed by six months or less.... At the other extreme, five (5) courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench....

This study largely replicates the findings from TRAC's first national judge-by-judge examination of the differences among federal judges in sentencing practices that appeared in the Federal Sentencing Reporter. That study was published almost a decade ago. While it is true that some specific courthouses show greater agreement today, others show less agreement. Many of these changes appear to reflect changes in the judges currently serving there.

Yet answering the question of whether significant intra-judge differences in sentencing practices exist is not sufficient to establish that such differences are indeed unwarranted sentencing disparities. Much more research and a great deal more time is needed for a thorough examination of the actual details of judge-by-judge sentencing patterns.

September 30, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Recidivism of Federal Offenders Released in 2010"

Cover_2021-recidivism-overviewAs I have said repeatedly over the last three years, it is has been great to see that the US Sentencing Commission can continue to do a lot of needed and important data analysis even as its policy work it necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example was released today in this form of this big new report titled "Recidivism of Federal Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted below:

Overview

This report is the first in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI).  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for offenders released in 2010 to federal offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders. The final study group of 32,135 offenders satisfied the following criteria:

  • United States citizens;
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010;
  • Not reported dead, escaped, or detained;
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

  • The recidivism rate remained unchanged for federal offenders released in 2010 compared to offenders released in 2005 despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision....
  • For offenders who were rearrested, the median time to arrest was 19 months. The largest proportion (18.2%) of offenders were rearrested for the first time during the first year following release. In each subsequent year, fewer offenders were rearrested for the first time than in previous years. Most offenders in the study were rearrested prior to the end of supervision terms....
  • Assault was the most common (20.7%) offense at rearrest.  The second most common offense was drug trafficking (11.3%), followed by: larceny (8.7%), probation, parole, and supervision violations (8.1%), and administration of justice offenses (7.5%).
  • Combined, violent offenses comprised approximately one-third of rearrests; 31.4 percent of offenders were rearrested for assault (20.7%), robbery (4.5%), murder (2.3%), other violent offense (2.3%), or sexual assault (1.6%).
  • Similar to findings in its previous studies, the Commission found age and Criminal History Category (CHC) were strongly associated with rearrests....  Combined, the impact of CHC and age on recidivism was even stronger.  During the eight-year follow-up period, 100 percent of offenders who were younger than 21 at the time of release and in CHC IV, V, and VI (the most serious CHCs) were rearrested.  In contrast, only 9.4 percent of offenders in CHC I (the least serious CHC) who were aged 60 and older at release were rearrested.
  • Offenders sentenced for firearms and robbery offenses had the highest rearrest rates during the eight-year follow-up period, with 70.6 percent and 63.2 percent, respectively.  In contrast, offenders sentenced for fraud, theft, or embezzlement had the lowest rearrest rate (35.5%).

September 30, 2021 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how.  This question is far more complicated than it might seem.  We could cut the prison population in half, for example, by drastically shortening sentences.  Or we could reduce prison admissions.  Or we could do both.  And we could do either or both for countless combinations of criminal offenses.  Moreover, even when they reach the same numeric target, these strategies are not equivalent.  They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect.  To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.

This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies.  The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself.  We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing.  Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%.  Finally, it identifies the best performing strategies against each metric.

The results have several broader takeaways.  First, the optimal approach to decarceration depends heavily on which metrics we value most.  The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses — a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds.  Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities.  Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.

September 29, 2021 in National and State Crime Data, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Two misdemeanants get 45-day jail terms at latest January 6 riot sentencings

In this post a few weeks ago, I noted that federal prosecutors had started talking up the prospect of seeking jail time even in some of the January 6 riot cases that were resolved through only misdemeanor charges.  Today, as reported in this new AP piece, headlined "Ohio friends sentenced to 45 days for U.S. Capitol riot Jan. 6," jail time for two January 6 misdemeanants became a reality:

Federal prosecutors assert that everybody who stormed the U.S. Capitol on Jan. 6 should be evaluated individually when deciding whether a prison sentence is warranted.  On Wednesday, a judge accepted the Justice Department’s assessment that two friends from Ohio fall into a category of rioters who deserve to be incarcerated.

U.S. District Judge James Boasberg sentenced Derek Jancart and Erik Rau to 45 days in jail. Prosecutors had recommended four months of imprisonment for both men.  They must report to jail by Nov. 29.  The jail sentences for Jancart and Rau could become benchmarks for how the courts resolve many other Capitol insurrection prosecutions, a caseload that tops 600 defendants and grows by the week.

Like most of the insurrectionists who have pleaded guilty so far, Jancart and Rau aren’t accused of engaging in any violence or destruction at the Capitol or of conspiring to stop Congress from certifying President Joe Biden’s electoral victory. Defense attorneys compared their actions to those of other Capitol riot defendants who avoided prison sentences after pleading guilty to non-violent misdemeanors.

But prosecutors cited several factors in arguing that prison, not probation, was the appropriate sentence for both men — and will be in many other cases.  They said Jancart, an Air Force veteran, prepared for violence on Jan. 6 by bringing a gas mask and two-way radios to Washington. Rau, a steel mill worker, brought a medical kit and Kevlar-lined gloves.

They said Jancart and Rau spent 40 minutes inside the Capitol, reaching House Speaker Nancy Pelosi’s conference room. Jancart celebrated the violence on social media and didn’t show any remorse when the FBI arrested him, according to prosecutors.  They said Rau screamed, “We have you surrounded!” at police officers and shouted, “Go, go, go!” and “Yeah, they just pushed through the guards!” Those statements are “akin to inciting a riot and contributed to the environment of terror on that day,” prosecutors said.

“This was not a protest,” prosecutors wrote. “And it is important to convey to future rioters and would-be mob participants — especially those who intend to improperly influence the democratic process — that their actions will have consequences.”

The judge told Jancart and Rau that they and other rioters tried to undermine the peaceful transfer of power after a democratic election.  “There are few actions that are as serious as the one this group took on that day,” Boasberg said.

Jancart and Rau apologized and expressed remorse for their actions. “I did get caught up in the moment,” Jancart said.  “I just kind of followed the crowd and let my curiosity get the best of me.”

“There is no excuse for my actions on Jan. 6,” Rau said. “I 100% know better than to do what I did that day.”

Jancart was arrested at his Ohio home in February. Rau was arrested in July. Both men pleaded guilty to disorderly conduct in a Capitol building, a misdemeanor that carries a maximum sentence of six months’ imprisonment.

Over 80 defendants have pleaded guilty to riot-related offenses, but only seven others besides Jancart and Rau have been sentenced so far. A Florida man who entered the U.S. Senate chamber was sentenced to eight months in prison.  Two were sentenced to time served after six months in jail. Two were sentenced to house arrest. Two others received probation.

Probationary sentences “should not necessarily become the default,” prosecutors wrote.  “Those who trespassed, but engaged in aggravating factors, merit serious consideration of institutional incarceration. While those who trespassed, but engaged in less serious aggravating factors, deserve a sentence more in line with minor incarceration or home confinement,” they added....

More than 50 other rioters are scheduled to be sentenced before the end of 2021.

Some of many prior related posts:

September 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (2)

Register for 2021 Menard Family Lecture on Drug Policy and Criminal Justice and other great drug sentencing events

Menard-Lecture_for-u.osu_.edu_updated-768x281In this post last week, I noted the exciting event taking place on October 7-8 titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  In addition to again highlighting the full symposium (and urging everyone to register for all the panels), I wanted to be sure to give some extra attention to the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" scheduled for Thursday, October 7 from 12:30-2pm EDT.  Here again is the summary description of a discussion that I will have the honor of moderating (along with this registration link):

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, I wanted also to note an exciting new addition to the event schedule with a film screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate. But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

September 29, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

September 28, 2021

Texas completes state's third execution of 2021

As reported in this local article, "Texas carried out its third execution of the year Tuesday night, lethally injecting Rick Rhoades for killing two men in their Houston-area home 30 years ago."  Here is more:

I speculated in this post, wrongly, that death row inmates might all be able to secure a stay of execution after SCOTUS granted cert in Ramirez to determine religious liberty rights in the Texas execution chamber.  A couple of weeks ago, as noted here, another Texas inmate did get an execution stay based on religion claim SCOTUS is considering in Ramirez.  But it seems Rhoades was either uninterested or unable to make a Ramirez claim, and his execution went forward as scheduled.

September 28, 2021 in Death Penalty Reforms | Permalink | Comments (1)

USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns

Jason-voorhees-friday-the-13th_1I had heard rumors that the US Sentencing Commission was working on a new sentencing data tool for federal sentencing judges, and today the USSC unveiled here what it calls the Judiciary Sentencing INformation (JSIN).  Here is how the USSC generally describes JSIN (which is called "jason" in the helpful video the USSC has on its site):  

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.  

This all sounds great and interesting, and JSIN seems relatively easy to navigate and quite useful until one notices these notable data choices spelled out in the FAQ provided by the USSC (with my emphasis added):

After excluding cases involving a §5K1.1 substantial assistance departure, JSIN next provides a comparison of the proportion of offenders sentenced to a term of imprisonment to those sentenced to a non-imprisonment sentence....

JSIN reports the average and median term of imprisonment imposed in months for cases in which a term of imprisonment was imposed. Probation sentences are excluded.

Though I am not a data maven, I can understand the general logic of excluding the 5K and probation cases from the JSIN data analysis. But, perhaps because I am not a data maven, I greatly fear that these data exclusion choices result in the JSIN platform being systematically skewed to report statistically higher average and median terms of imprisonment.  For example, if 94 imprisonment cases have an average prison term of, say, 50 months and 6 more cases were given probation, I think the true average sentence is 47 months, but JSIN is seemingly built to report an average of 50 months.  Though less predictable, I fear the exclusion of 5K cases also may create a kind of severity bias in the data reporting.

IN addition, I did not see any way to control for the application of mandatory minimum statutes, which also serve to skew judicial sentencing outcomes to be more severe.  If a case have a guideline range of 30 for a first offender, meaning a range of 97-121 months under the guidelines, but a 10-year mandatory minimum applies, the judge is duty-bound to impose a sentence of at least 120 months even if he might want to give 97 months or something a lot lower.  If that sentence of 120 months is treated in the averages like every other sentence, it looks like the judge wanted to give the top of the guideline range even though he gave the lowest sentence allowed by law.  In other words, without controlling for the distorting impact of mandatory minimums, these averages may not really reflect judicial assessments of truly justified sentencing outcomes but rather averages skewed upward by mandatory minimums.

I am not eager to beat up on the USSC for creating a helpful and easy-to-use data tool and for making this tool accessible to everyone online.  And I am hopeful that the exclusions and mandatory minimum echoes may only impact the data runs in relatively few cases and only a small amount.  But even if the impact is limited, I think it quite worrisome if this JSIN tool has a built-in and systemic "severity biases" due to its data choices.  If it does, when hear about JSIN, I am not going to imagine the heroic Jason Bourne, but rather the nightmarish Jason Voorhees.

September 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 — more than a quarter century ago! — sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ushering in decades more disproportionately severe crack sentences and extreme racial inequities in federal cocaine offense punishments.

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

September 28, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases updated "Compassionate Release Data Report" covering all of 2020 and first half of 2021

As detailed in prior posts here and here, a few months ago the US Sentencing Commission started releasing short data report titled "Compassionate Release Data."  Though these reports provide only some very basic accounting of the grants and denials of federal compassionate release motions nationwide, they still provide the only "official" accounting of who is getting relief and some of the basics surrounding their demographics. 

Exciting, the latest of these reports was released today at this link and "reflects compassionate release motions decided by the courts during calendar years 2020 and 2021 (January 1, 2020 - June 30, 2021)."  Table 1 of the report shows, perhaps unsurprisingly, that the number of these motions brought and the grant rate declined though the first six months of 2021.  I presume that could reflect the fact that lots of the strongest cases may have received release in 2020 and also concerns about COVID started declining as vaccines became available to federal prisoners.

As I have said before, I hope that the US Sentencing Commission not only continues to release more data on these cases, but also a lot more granular data and analyses about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) discuss which guidelines might be still producing excessively long sentences in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

September 28, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Some notable sentencing issues on SCOTUSblog's "Petitions to Watch" from long conference

Yesterday, the US Supreme Court had its "long conference" to consider the thousands of cert petitions that were fully briefed over the summer recess. SCOTUSblog has a long list of "Petitions We’re Watching" at this link, and here are just some of the sentencing-related ones that caught my eye:

Louisiana v. Hill, No.20-1587

(1) Whether a state may require convicted sex offenders to obtain and carry a state identification bearing the words “sex offender” without facially violating the First Amendment’s prohibition on compelled speech; and (2) whether a convicted sex offender has a First Amendment right not to be prosecuted for fraudulently altering a state identification card after scratching off a statutorily required sex offender designation.

Houston v. U.S., No. 20-1479

Whether a sentencing court must consider applicable sentencing factors codified in 18 U.S.C. § 3553(a) when deciding whether to impose a reduced sentence under Section 404(b) of the First Step Act.

Jackson v. Hudson, No. 21-347

Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.

Janis v. U.S., No. 21-68

(1) Whether Standard Condition 12 of the U.S. Sentencing Guidelines, codified in U.S.S.G. § 5D1.3(c)(12), unconstitutionally delegates authority to the probation officer; and (2) whether Standard Condition 12 is unconstitutionally vague.

Bryant v. U.S., No. 20-1732

Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.

Leontaritis v. U.S., No. 20-1614

(1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.

September 28, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

September 27, 2021

"Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?"

The title of this post is the title of this online panel scheduled for tomorrow and the third and final one in the terrific series of online panels that have been exploring in depth federal clemency powers and practices.  As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this final panel:

Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?

Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom (register here)

This panel rounds out the theme of the series, by considering whether Donald Trump’s departure from past pardoning practices has paved the way for much-needed reforms in the process by which the president gets advice in pardon matters.  Jeffrey Crouch, author of the most comprehensive recent history of the pardon power, will offer an historical perspective on the pardon process, asking whether it has failed in recent years to serve its original purpose of promoting the rule of law and shielding the president from scandal. Rachel Barkow and Paul Larkin have both proposed moving the pardon process out of the Department of Justice to avoid the stranglehold of federal prosecutors, though each has proposed quite different advisory mechanisms with likely differing outcomes: Barkow would create an independent board of officials to receive applications, apply objective standards, and make recommendations to the president, while Larkin believes pardoning is best managed from inside the White House.  Margaret Love, who served as pardon attorney under Presidents George H.W. Bush and Bill Clinton, has argued that the process by which the president gets advice in pardon matters should stay in Justice but with significant structural changes.  These proposals are a hopeful sign that the future of the pardon power is brighter than its recent past.

Panelists:

Rachel Barkow, vice dean and Charles Seligson Professor of Law, New York University School of Law
Jeff Crouch, assistant professor of American politics, School of Public Affairs, American University
Paul J. Larkin Jr., Rumpel Senior Legal Research Fellow, The Heritage Foundation 
Margaret Love
, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

Moderator:

Douglas Berman, executive director, Drug Enforcement and Policy Center

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

R. Kelly now likely facing a long sentence after convictions on all federal sex trafficking charges

I have not been following the federal prosecution of R. Kelly closely, but a whole bunch of news alerts today let me know he is now entering the sentencing stage.  This CNN piece sets out the specifics of the guilty verdict: "Kelly was found guilty of nine counts -- one count of racketeering and eight counts of violating the Mann Act.  Of the 14 underlying acts for the racketeering count, he needed to be found guilty of at least two to be convicted of that count.  Jurors found prosecutors had proven all but two of the 14 underlying racketeering acts."  And, based in part on this NBC News account and other discussions of his wrongdoing, federal sentencing is likely to be grim for Mr. Kelly:

R. Kelly, the R&B superstar who has long been trailed by accusations of sexual misconduct and abuse, was found guilty Monday on all counts in a high-profile sex-trafficking case, capping a trial that featured hours of graphic testimony from the singer’s accusers.

Kelly, who has been in custody for much of the time since he was formally charged in 2019, was convicted on one count of racketeering and eight counts of violating the Mann Act, a law that bars the transport of people across state lines “for any immoral purpose.”

Kelly, best known for the 1996 hit “I Believe I Can Fly,” pleaded not guilty to all charges in the case. The singer, whose real name is Robert Sylvester Kelly, did not take the stand in his own defense.

The prosecutors in the trial, which centered around the allegations of six people, alleged that the singer was a serial sexual predator who abused young women as well as underage girls and boys for more than two decades. Prosecutors further alleged that the singer and his entourage led a criminal enterprise that recruited and groomed victims for sex, arranging for them to travel to concerts and other events across the U.S.

In a closing argument that lasted two days, Assistant U.S. Attorney Elizabeth Geddes accused Kelly and his entourage of using tactics from “the predator playbook” to control his victims. Kelly’s alleged tactics included confining victims in hotel rooms or his recording studio, managing when they could eat and use the bathroom, and forcing them to follow various “rules,” including demanding they call him “Daddy.”

“It is now time to hold the defendant responsible for the pain he inflicted on each of his victims,” Geddes said Thursday in federal court in Brooklyn.  “It is now time for the defendant, Robert Kelly, to pay for his crimes. Convict him.”...

​​The singer’s lawyers attempted to portray his accusers as “groupies” who sought to exploit his fame and take advantage of the #MeToo movement.  Deveraux Cannick, one of Kelly’s defense lawyers, argued that testimony from several of his client’s accusers was false, saying in his closing argument: “Where is the fairness to Robert? Where’s the integrity of the system?”...

“Surviving R. Kelly,” a Lifetime documentary series released in 2019 that featured testimony from several accusers, intensified calls for the singer to face legal consequences for his alleged pattern of abuse.  Kelly was previously acquitted on child pornography charges in 2008.

Though I doubt anyone will make a follow-up documentary titled "“Sentencing R. Kelly,” I will certainly plan to keep an eye on this case in the months to come because I suspect the feds will be seeking a pretty steep sentencing term (based on what should be severe guideline calculations) while the defense will surely seek a way below-guideline sentence.  The sentencing is apparently not scheduled until May 2022, so we will all have plenty of time to make predictions.

September 27, 2021 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (4)

FBI releases 2020 crime statistics showing increase in violent crime and decrease in property crime

HighAs set out in this press release, headlined simply "FBI Releases 2020 Crime Statistics," we now have the FBI's accounting of US crime dynamics in the crazy year of 2020.  The basic 2020 story of violent crime up and property crime down has been widely discussed, but these "official" particulars still matter.  Here are highlights from the FBI press release:

For the first time in four years, the estimated number of violent crimes in the nation increased when compared with the previous year’s statistics, according to FBI figures released today.  In 2020, violent crime was up 5.6 percent from the 2019 number. Property crimes dropped 7.8 percent, marking the 18th consecutive year the collective estimates for these offenses declined.

The 2020 statistics show the estimated rate of violent crime was 387.8 offenses per 100,000 inhabitants, and the estimated rate of property crime was 1,958.2 offenses per 100,000 inhabitants.  The violent crime rate rose 5.2 percent when compared with the 2019 rate; the property crime rate declined 8.1 percent.

These and additional data are presented in the 2020 edition of the FBI’s annual report Crime in the United States.  This report is available as downloadable spreadsheets and topic pages about offenses, arrests, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.  (The FBI classifies arson as a property crime but does not estimate arson data because of variations in the level of participation by the reporting agencies.  Consequently, arson data is not included in the property crime estimate.)  The program also collects arrest data for the offenses listed above and 20 offenses that include all other crimes except traffic violations.

Of the 18,619 federal, state, county, city, university and college, and tribal agencies eligible to participate in the UCR Program, 15,897 agencies submitted data in 2020. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2020, there were an estimated 1,277,696 violent crimes. When compared with the estimates from 2019, the estimated number of robbery offenses fell 9.3 percent and the estimated volume of rape (revised definition) offenses decreased 12.0 percent.  The estimated number of aggravated assault offenses rose 12.1 percent, and the volume of murder and nonnegligent manslaughter offenses increased 29.4 percent.

  • Nationwide, there were an estimated 6,452,038 property crimes. The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates. Burglaries dropped 7.4 percent, larceny-thefts decreased 10.6 percent, while motor vehicle thefts rose 11.8 percent.

  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $17.5 billion in 2020.

  • The FBI estimated law enforcement agencies nationwide made 7.6 million arrests, (excluding those for traffic violations) in 2020.

  • The arrest rate for violent crime was 147.9 per 100,000 inhabitants, and the arrest rate for property crime was 267.3 per 100,000 inhabitants.

  • By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 6.3; robbery, 21.0; and aggravated assault, 116.8 per 100,000 inhabitants.

  • Of the property crime offenses, the arrest rate for burglary was 45.7 per 100,000 inhabitants; larceny-theft, 193.1; and motor vehicle theft, 25.5. The arrest rate for arson was 3.0 per 100,000 inhabitants.

  • In 2020, 13,377 law enforcement agencies reported their staffing levels to the FBI. These agencies reported that, as of October 31, 2020, they collectively employed 696,644 sworn officers and 309,135 civilians—a rate of 3.4 employees per 1,000 inhabitants.

September 27, 2021 in National and State Crime Data | Permalink | Comments (0)

September 26, 2021

"Custodial Sanctions and Reoffending: A Meta-Analytic Review"

The title of this post is the title of this forthcoming publication in Crime & Justice authored by Damon Petrich, Travis Pratt, Cheryl Lero Jonson, and Francis Cullen. Here is its abstract:

Beginning in the 1970s, the United States began an experiment in mass imprisonment.  Supporters argued that harsh punishments such as imprisonment reduce crime by deterring inmates from reoffending.  Skeptics argued that imprisonment may have a criminogenic effect.  The skeptics were right.  Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.  Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation.  This finding is robust regardless of variations in methodological rigor, types of sanctions examined, and sociodemographic characteristics of samples.  All sophisticated assessments of the research have independently reached the same conclusion.  The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.”  Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism.  Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders.

September 26, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Washington Supreme Court rules 46-year minimum term for juve murderer "unconstitutional de facto life sentence"

The Supreme Court of the State of Washington issued an interesting opinion regarding juvenile sentencing rules late last week in State v. Haag, No. 97766-6 (Wash. Sept. 23, 2021) (available here). Here is how the majority opinion in Haag gets started:

It is well established that “children are different from adults” for sentencing purposes.  State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017).  When a child commits the crime of aggravated first degree murder, the federal and state constitutions, the enactments of our legislature, and our case law demand that such a child be treated differently from an adult.  Here, this body of law demands another resentencing hearing for Timothy Haag.

In 1995, Haag was sentenced to mandatory life without parole for a crime he committed at the age of 17.  In 2018, at a Miller-fix resentencing conducted pursuant to RCW 10.95.030, the resentencing court expressly found that “Haag is not irretrievably depraved nor irreparably corrupt.” 1 Verbatim Report of Proceedings (Jan. 19, 2018) at 25.  Yet the court resentenced Haag to a term of 46 years to life; the earliest that he could be released is at the age of 63.  Id. at 27.  Haag sought review in this court, arguing that the trial court erroneously emphasized retribution over mitigation and that his sentence amounts to an unconstitutional de facto life sentence.  We agree.

We hold that the resentencing court erred because it gave undue emphasis to retributive factors over mitigating factors. We also hold that Haag’s 46-year minimum term amounts to an unconstitutional de facto life sentence.  We reverse and remand for resentencing in accordance with this opinion.

September 26, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)