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November 20, 2021

Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0

More than a decade ago, it took a couple years of Thanksgiving turkey pardon rituals before Prez Obama started receiving considerable grief for only granting clemencies to birds and not humans.  But I suppose we have made some progress in the last decade, as now one can find a few year-one commentaries assailing the Prez Biden's clemency record that is just fit the the farm and not for families:

From Marijuana Moment, "Biden Pardons Turkeys, But White House Has ‘Nothing New’ On Relief For Marijuana Prisoners"

From the New York Post, "Biden laughs off question about clemency for humans before pardoning turkeys"

From the Star Tribune, "When it comes to human pardons, thanks for nothing: President Joe Biden hasn't just not pardoned anyone — he's just letting the requests sit unanswered."

Disappointingly, there is still a lot more discussion of the names and fate of the turkeys who were "pardoned" than of the broken federal clemency process and the thousands of clemency requests so far ignored by the Biden Administration.  Sigh.

November 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

November 19, 2021

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

November 19, 2021 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

Can Oklahoma's current governor really preclude all future governors from further clemency grants for Julius Jones?

I just had a chance this morning to look at this actual executive order that Oklahoma Governor J. Kevin Stitt signed to commute the death sentence of Julius Jones to life imprisonment without the possibility of parole.  The document is interesting in part because it states that the Pardon and Parole Board's recommendation of a commutation to a "sentence of life with the possibility of parole" was not authorized by the Oklahoma Constitution or Oklahoma law and that the "Oklahoma Constitution and other laws of the State also do not provide the Governor authority to grant any such recommendation."  But speaking of a lack of authorization, I was especially struck by this additional part of the executive order:

The Governor has the power to grant commutations "upon such conditions and with such restrictions and limitations as the Governor may deem proper .... "  I hereby place the following conditions upon this commutation:

Julius Darius Jones shall not be eligible to apply for or be considered for a commutation, pardon, or parole for the remainder of his life.

In addition to laws prohibiting the Pardon and Parole Board from recommending and the Governor from granting to Julius Jones life with parole, now or in the future, the Pardon and Parole Board's Rules prevent Jones from re-applying for commutation.  Title 515, Chapter 15, Subchapter 15 of the Oklahoma Administrative Code states, "After receiving a favorable commutation of a sentence from the Governor, an Inmate is ineligible to apply for an additional commutation on the same sentence."

Though I strongly dislike and disfavor any policy of ever precluding a person from ever re-applying for clemency, I suppose I can see some viable legal basis for state laws or rules to preclude repeated clemency applications.  But, critically, this order seems to be trying to preclude all future Oklahoma executive officials from being able to even "consider" Jones "for a commutation, pardon, or parole for the remainder of his life."  And at the start of this order, Gov Stitt states his condition even more broadly: "I ... hereby commute the death sentence of Julius Darius Jones to life imprisonment without the possibility of parole, on the conditions that he shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole."  (Emphasis added.)

Jones is likely to live in prison for many decades, and further evidence of his innocence or other changed circumstances in the years ahead might want some future governor to consider and possibly grant some other form of clemency.  I do not think there is any legal basis for a current governor to tie the hands of all future governors in the way, but I suspect Jones and his allies will be disinclined to worry or litigate about this future issue while still celebrating his removal from Oklahoma's death row.

A few prior related posts:

November 19, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"How families respond to the collateral consequences of incarceration and prisoner reentry"

The title of this post is the title of this new article authored by Brittany Hood and Shytierra Gaston in the journal Family Relations. Here is its abstract:

Objective

The goal of this research was to investigate the ways in which families respond to the collateral consequences of incarceration and reentry.

Background

Although scholars have extensively documented the collateral consequences of mass incarceration for individuals, far less attention has been paid to families, particularly the adult relatives of incarcerated or formerly incarcerated persons who are the primary social support agents.

Method

The current study draws from 24 in-depth, semistructured interviews with the parents, siblings, romantic partners, and other relatives of formerly incarcerated persons in an urban, mid-sized Midwestern city.  We employed a multistage qualitative analysis.

Results

The analysis revealed 10 stress-induced responses among families.  These responses largely involved individuals' self-reliance on their personal efficacy, some reflecting maladaptive responses, while having limited external or formal supports on which to rely when facing strains from familial incarceration.

Implication

Findings suggest that the significant socioeconomic and psychological tax families pay when supporting a justice system–involved relative compromises their well-being.  This study has the potential to inform treatment, research, practices, and policies involving families that are affected by incarceration.

November 19, 2021 in Collateral consequences, Offender Characteristics | Permalink | Comments (0)

November 18, 2021

Interesting split Ohio Supreme Court ruling at the intersection of collateral consequences, gun rights and victims' rights

The Ohio Supreme Court today handed down an interesting decision today in State ex rel. Suwalksi v. Peeler, No. 2021-Ohio-4061. (Oh. Nov. 18, 2021) (available here), in a case concerning collateral consequences, gun rights and victims' rights.  Chief Justice O'Connor authored the majority opinion in the case, which starts this way:

Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski.  As a result of that conviction, federal law prohibits Ewing from possessing a firearm, see 18 U.S.C. 922(g)(9), unless, as relevant in this case, the domestic-violence offense is one for which Ewing “has had [his] civil rights restored” under Ohio law, 18 U.S.C. 921(a)(33)(B)(ii).  Ewing filed in the Warren County Court of Common Pleas an application under R.C. 2923.14 for relief from his federal firearms disability, and Judge Robert W. Peeler, a judge of that court, granted Ewing’s application and issued an order restoring his firearms rights.

Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler’s order from being effective and invoking Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law.”  The court of appeals permitted Ewing to intervene.  The court of appeals granted the writ, holding that Judge Peeler lacked the judicial power to relieve Ewing of the federal firearms disability imposed by 18 U.S.C. 922(g)(9). 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24.

We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals.  Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.

Justice Kennedy authored the dissent, which was joined by two other Justices and starts this way:

Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law,” enumerates specific rights afforded to victims of crime, including the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” Marsy’s Law permits a victim of a crime to “petition the court of appeals for the applicable district” to vindicate his or her enumerated rights.  Article I, Section 10a(B), Ohio Constitution.

Relying on Marsy’s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy’s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability.  The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25.  However, based on the plain language of the enumerated rights established in Marsy’s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter.  Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person.  Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.

November 18, 2021 in Collateral consequences, Gun policy and sentencing, Victims' Rights At Sentencing | Permalink | Comments (3)

Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole

A high-profile Oklahoma capital case involving claims of innocence took a notable turn just hours before a scheduled execution, as reported in this local press piece:

Julius Jones was scheduled to be executed at 4 p.m. Thursday at the Oklahoma State Penitentiary in McAlester. Oklahoma Gov. Kevin Stitt, however, announced at noon Thursday he has commuted Jones' sentence to life without the possibility of parole.

Jones, now 41, has been on death row for more than half of his life for the murder of Paul Howell. Jones has maintained his innocence, saying he was not responsible for the fatal shooting in Edmond in 1999. Jones' family insists he was at home.

The Oklahoma Pardon and Parole Board voted 3-1 on Nov. 1 to recommend Oklahoma Gov. Kevin Stitt grant clemency to Jones and reduce his sentence to life in prison with the possibility of parole....

Amanda Bass, the attorney for Julius Jones released the following statement after Gov. Kevin Stitt commuted Jones' sentence to life without the possibility of parole: "Governor Stitt took an important step today towards restoring public faith in the criminal justice system by ensuring that Oklahoma does not execute an innocent man. While we had hoped the Governor would adopt the Board's recommendation in full by commuting Julius's sentence to life with the possibility of parole in light of the overwhelming evidence of Julius's innocence, we are grateful that the Governor has prevented an irreparable mistake."...

“The governor just announced he’s going to grant clemency,” Tiffany Crutcher announced to the crowd outside the Oklahoma State Penitentiary in McAlester. The crowd erupted in shouts of joy. Supporters broke into tears, including Paige Patton who began to praise, “Thank you, Lord.”

The celebration lessened as Crutcher announced that the Governor's decision was to commute Jones' sentence to life without parole. The fight to prove Jones' innocence is not over, and his supporters will not stop, she said. “Julius will get to see sunlight,” Crutcher said. “Julius will not be underground, he will get to hug his family.”

A few prior related posts:

November 18, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"How to be a Better Plea Bargainer"

The title of this post is the title of this new paper authored by Cynthia Alkon and Andrea Kupfer Schneider now available via SSRN. Here is its abstract:

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context.  The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.

The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

November 18, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season

Rachel Barkow and Mark Osler have this new Hill commentary, headlined "Biden can't let Trump's DOJ legacy stifle reform," that focuses on Prez Biden's current disappointing clemency record.  I recommend the full piece, and here is a snippet:

We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead.

It is no small wonder that this approach has so far resulted in the first increase in the federal prison population in years. The DOJ is poorly situated to take the lead on whether to support legislation to reform sentencing and federal charges because its prosecutors inevitably want laws that make their jobs easier — even when the public interest and Biden’s commitment to reform criminal justice points in a different direction.  Nothing Trump did challenges the urgent need to take DOJ out of its lead policymaking role on criminal law reform — in fact, criminal law reform in the form of the First Step Act was one of his very few bipartisan accomplishments and was accomplished without the imprimatur of the DOJ.

And then there is Biden’s do-nothing approach to clemency, which he seems to have delegated entirely to the DOJ.  Biden inherited 14,000 pending clemency cases when he took office, and there was widespread agreement among those who studied the issue that the solution to the logjam requires moving clemency out of DOJ.  Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades.  That backlog is now 17,844.

So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War?  The only apparent answer is that Biden does not want to look like he is interfering with DOJ.  But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

Prior recent related post:

November 18, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

November 17, 2021

Mississippi completes its first execution since 2012, the tenth in the US in 2021

As reported in this AP piece, "A man who pleaded guilty to killing his estranged wife and sexually assaulting her young daughter as her mother lay dying was put to death Wednesday evening, becoming the first inmate executed in Mississippi in nine years." Here is more:

David Neal Cox, 50, abandoned all appeals and filed court papers calling himself “worthy of death” before the state Supreme Court set his execution date.  He received a lethal injection and was pronounced dead at 6:12 p.m. CST at the Mississippi State Penitentiary at Parchman.

Cox had pleaded guilty in 2012 to capital murder for the May 2010 shooting death of his estranged wife, Kim Kirk Cox. He also pleaded guilty to multiple other charges, including sexual assault.  A jury handed down the death sentence....

Cox appeared to take several deep breaths after the lethal chemicals started flowing through a clear plastic tube into his body, and his mouth moved some. After several minutes, the local coroner pronounced him dead.

Among those who gathered to witness the execution was Cox’s now 23-year-old stepdaughter.  She was 12 when he sexually assaulted her three times in front of her wounded mother as he held them and one of her younger brothers hostage on the night of May 14 and May 15, 2010, in the small town of Sherman.

Mississippi carried out six executions in 2012.  The state does not have any others scheduled among the more than 30 people currently on its death row.  States have had difficulty finding lethal injection drugs because pharmaceutical companies began blocking the use of their products to carry out death sentences....

A group that opposes executions, Death Penalty Action, said killing an inmate who surrendered all appeals would amount to “state-sponsored suicide.” The group petitioned Republican Gov. Tate Reeves to block the execution of Cox, but Reeves’ spokeswoman said the governor would not intervene because Cox admitted to ”horrific crimes.”

November 17, 2021 in Death Penalty Reforms | Permalink | Comments (4)

Notable Sentencing Project fact sheet on "Parents in Prison"

The Sentencing project today released this short fact sheet titled simply "Parents in Prison" that provides key facts on parents in prison and policies that impede their ability to care for their children when released. Here is how it starts:

Half of imprisoned people in the United States are parents of minor children who are under age 18: 47% in state prisons and 57% in federal prisons.  Most imprisoned parents of minor children are fathers (626,800 fathers, compared to 57,700 mothers).  But a higher proportion of imprisoned women (58%) than imprisoned men (47%) have minor children.  Between 1991 and 2016, the latest year for which national data is available, the number of fathers in prison increased 48% and the number of mothers increased 96%.  This brief examines trends in parental incarceration, strains on families, missed opportunities for interventions, as well as recent reforms.

November 17, 2021 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) finally granted parole at age 75

Henry Montgomery back in 2016 won in the US Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively. But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.   Montgomery was in February 2018 denied parole as detailed in this post, and he was denied parole again in April 2019 as detailed in this post.  But I am pleased to now be able to report that the third time was a charm for Montgomery as reported in this UPI piece headlined "Longtime inmate and key figure in juvenile sentence reforms finally wins parole." Here are some of the details:

A Louisiana man who's spent the vast majority of his life in prison for killing a sheriff's deputy when he was a minor almost 60 years ago -- and whose case has been instrumental in freeing hundreds of inmates who were sentenced to life for crimes as juveniles -- is finally getting his chance to walk free.

Henry Montgomery on Wednesday appeared at his third hearing before a Louisiana parole board. The first two turned him down.  The third gave him his freedom after 57 years behind bars.

For years, advocates have said Montgomery is serving an unconscionably long sentence for a crime he committed as a minor, in spite of state Supreme Court rulings that determined that life sentences for juveniles amount to "cruel and unusual punishment."...

Montgomery was 17 when he shot and killed East Baton Rouge Paris Deputy Charles Hurt in 1963, after the lawman caught him skipping school. He's now 75. He was initially sentenced to death, but that sentence was overturned in 1966 when the Louisiana Supreme Court ruled that he did not receive a fair trial. After a retrial, he was sentenced to life without parole.

Montgomery has been locked up in the Louisiana State Penitentiary, known as "Angola" after the former plantation that occupied the area. "Through his personal growth, maturity, and maintenance of an excellent record of conduct while in prison, Henry proves daily that he is no longer the 17-year-old child he was in 1963," Marshan Allen, national policy director of Represent Justice, said in a tweet before Wednesday's decision....

Montgomery's case was at the center of a legal fight that went all the way to the U.S. Supreme Court, and resulted in a ruling that's allowed nearly 1,000 people who were sentenced to life without parole as a juvenile to be freed....

At his first two parole hearings -- in 2018 and 2019 -- he was denied release. At both hearings, two of the three board members voted to grant him his release from prison and one voted to keep him imprisoned. At the time, parole decisions had to be unanimous. Earlier this year, however, Louisiana changed its law to require only a majority vote if an inmate meets certain conditions -- meaning Montgomery would be freed if he got another 2-1 vote in his favor.

The dissenting voter who voted against releasing Montgomery in 2019 said that he hadn't presented enough programs in prison. But Andrew Hundley, one of the people who was released as a result of Montgomery vs. Louisiana and director of the Louisiana Parole Project, said that Angola did not offer such programs for decades of his sentence. "It was the most violent prison in America.  There wasn't this idea of rehabilitation and that prisoners should take part in programming to rehabilitate themselves," he told The Atlantic. "That culture didn't exist and there weren't programs. You just woke up every day trying not to get killed."

Hundley added that he's felt like it's his "life's work" to get Montgomery and others like him out of prison. "Henry was in prison 18 years before I was born. And I've been home five and a half years now."

November 17, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Time For Justice The Urgent Need For Second Chances In Pennsylvania’s Sentencing System"

The title of this post is the title of this notable new report written by Emily Bloomenthal, Director of Research at FAMM.  Here is part of how the report's executive summary gets started:

Too many people in Pennsylvania are serving long prison terms that don’t make communities safer.  People who do not pose a risk to public safety languish in prison for decades because Pennsylvania’s laws don’t give them a second chance.  This report, which focuses on people serving minimum sentences of 20 years or longer, looks at the harms and injustices of extreme sentences in Pennsylvania, as well as opportunities for reform.

Key findings:

Pennsylvania’s prison population has been shaped by some of the harshest sentencing policies in the country.

• In 2019, Pennsylvania imprisoned more than seven times the number of people that it did in 1970.  That growth was driven by punitive policy choices, not increases in crime, and it did not make Pennsylvanians safer.

• Pennsylvania is a national leader in imposing extreme sentences.  This ranking is largely driven by two laws: the mandatory minimum sentence of life imprisonment required for first- and second-degree murder, and the denial of parole eligibility to anyone serving a life sentence. In Pennsylvania prisons, 13.4% of people are serving life without parole (LWOP), compared to only 3.6% nationally.

• The population serving extreme sentences in Pennsylvania has surged over the last few decades. There were more than nine times as many people serving extreme sentences in 2019 than there were in 1980.

• Pennsylvania’s extreme sentencing practices have overwhelmingly impacted people of color, especially Black people, who make up less than 11% of Pennsylvania’s population but 65% of people serving life sentences and 58% of those serving non-life sentences of 20 years or longer.

• Pennsylvania’s extreme sentencing practices have created a large (and growing) elderly prison population, which increased thirtyfold from 1979 to 2019.

Pennsylvania’s extreme sentences are a high-cost, low-value proposition for taxpayers.

• Researchers have found no evidence that severe sentencing policies discourage people from choosing to engage in crime.

• Extreme sentences are not necessary for preventing recidivism, because the vast majority of people who commit crimes — even very serious crimes — naturally grow out of criminal behavior as they age and mature.  For example, of the 174 Philadelphia juvenile lifers — all originally convicted of homicide — who were resentenced and released following landmark U.S. Supreme Court decisions, only two (1.1%) had been reconvicted of any offense as of 2020.

• Based on average incarceration costs, the Pennsylvania Department of Corrections (DOC) is spending $220 million per year to incarcerate 3,892 people who have already served at least 20 years.  The true cost is undoubtedly higher, because incarceration costs increase dramatically as people age and need more medical care.

• The average cost for incarcerated individuals in skilled or personal care units is $500 per day (or $182,625 per year), more than three times the cost for the general population.

November 17, 2021 in Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (0)

November 16, 2021

New OIG report assails BOP failures in implementation of FIRST STEP Act

This new Forbes article highlights key features of this detailed new memorandum from the Office of Inspector General criticizing the Bureau of Prisons on various failing that disrupted implementation of the FIRST STEP Act. Here is how the Forbes piece gets started:

On December 21, 2018, then President Donald J. Trump signed into law the First Step Act (FSA), which enacted several criminal justice reforms throughout the federal prison system. Now, nearly three years later, the Federal Bureau of Prisons (BOP) has yet to implement much its central purpose which was to further reduce institutional prison populations by offering incentives to inmates to earn credits toward more halfway house through certain educational programs.  It turns out part of the holdup on the implementation is because BOP management and union staff have been unable to come up with a solution to meet to discuss how the program will be implemented.  The reason we now know this is not because of an announcement from the BOP, but from the release of a recent Office of Inspector General (OIG) report criticizing the lack of implementation along with a lack of the BOP responding to a number of OIG reports over the past 3 years.

According to the OIG report, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner.  Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person.  This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA.

November 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

US Senate Judiciary Chair calling for AG Garland to fire head of Bureau of Prisons

This new AP article, headlined "Durbin calls for Garland to remove federal prisons director," reports on a notable call from a notable legislator for federal criminal justice personnel change. Here are the details:

The chairman of the Senate Judiciary Committee demanded Tuesday that Attorney General Merrick Garland immediately fire the director of the beleaguered federal Bureau of Prisons after an Associated Press investigation detailing serious misconduct involving correctional officers.

Sen. Dick Durbin’s demand came two days after the AP revealed that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since the start of 2019.  The AP investigation also found the agency has turned a blind eye to employees accused of misconduct and has failed to suspend officers who themselves had been arrested for crimes.

Durbin took particular aim at Director Michael Carvajal, who has been at the center of the agency’s myriad crises. Under Carvajal’s leadership, the agency has experienced a multitude of crises from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.

Carvajal was appointed by then-Attorney General William Barr but Deputy Attorney General Lisa Monaco said recently that she still had confidence in him despite the many serious issues during his tenure. The AP reported in June that senior officials in the Biden administration had been weighing whether to oust him. He is one of the few remaining holdovers from the Trump administration.

“Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more,” Durbin said in a statement. “It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.”...

Separately on Tuesday, the Justice Department’s inspector general found that the Bureau of Prisons had stalled the development of more than 30 agency policies because agency officials have been refusing to meet with the union representing prison workers for in-person policy negotiations, as required under a contract.

About half of the policies that have stalled for the last 20 months were created or revised in response to the First Step Act, a bipartisan criminal justice overhaul signed during the Trump administration and aimed at encouraging inmates to participate in programs aimed at reducing recidivism — which could let them out of prison earlier — easing mandatory minimum sentences and giving judges more discretion in sentencing.

The inspector general found that the Bureau of Prisons has not given credit to any of the about 60,000 federal inmates who have completed those programs because the agency hasn’t finalized its procedures or completed the policy negotiations with the union. The watchdog also found that the failure to negotiate has delayed the implementation of 27 recommendations from the inspector general’s office.

November 16, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"The Secret Success of Federal Probationers"

The title of this post is the headline of this important recent commentary authored by Jacob Schuman over at The Crime Report.  I recommend the full piece, and here are excerpts (with links from the original):

Several times a year, the United States Sentencing Commission (USSC) publishes research reports on the federal criminal justice system.  These reports are part of the Commission’s statutory mandate and provide vital information and analysis to attorneys, scholars and the public.  Over the past 10 years alone, the Supreme Court has cited Commission reports in more than half-a-dozen cases.

Unfortunately, the Commission’s July 2020 report on Federal Probation and Supervised Release Violations contains a major mistake that greatly overstates the dangerousness of federal probationers.  To correct that mistake, I used the Commission’s data to re-run the analysis and found that probationers were more successful than previously reported.

The Commission claimed that approximately one-in-five defendants violated their supervision every year; yet the rate for federal probationers was just one-in-20.  Similarly, the Commission found that nearly half of supervision violators engaged in new felony conduct, but the figure for probation violations was only one-third.

Acknowledging the success of federal probationers is especially important, given current efforts to reduce incarceration and stem COVID-19 transmission by allowing defendants to serve terms of supervision in the community.  If judges are led to believe that probationers are more likely to commit violations, then they may be less willing to impose supervision as an alternative to imprisonment.  The Commission’s error thus not only threatens to taint its own research, but also to mislead the courts to the detriment of criminal defendants and the public.

The Commission deserves credit for publishing the Violations report, which marks the “first time” the agency collected and analyzed data on revocation hearings.  The report includes a publicly accessible database of 108,115 hearings in federal district courts between 2013-2017.  In analyzing this database, the Commission combined defendants sentenced to probation with those sentenced to supervised release, describing them together as “offenders sentenced to supervision.” That was a significant blunder....

Because probation is limited to low-level defendants, whereas supervised release can be imposed in all cases, probationers are likely to have been convicted of less serious crimes and to have shorter criminal records than people on supervised release.  And since criminal history is a strong predictor of recidivism, it stands to reason that this difference may also affect the violation rates of each group of offenders....

The Violations report is roughly accurate when it comes to violations of supervised release, which dominate the database.  In 2019, there were 112,500 people on supervised release, compared to just 14,500 on probation.  Similarly, the Commission found that 95 percent of violations were by people on supervised release, compared to just 5 percent on probation.  The Commission failed to recognize, however, that because the data is overwhelmingly violations of supervised release, its analysis would reflect the behavior of those defendants, while obscuring the outcomes for federal probationers....

I draw three conclusions from these results.  First, judges should not let the findings in the Violations report deter them from imposing probation instead of imprisonment on worthy candidates.  While the report suggests a ~20 percent annual violation rate, of which approximately half were new felonies, the data for federal probationers is more promising.  Federal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation.  The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers.

Second, Congress should consider expanding probation eligibility.  While the low violation rates for federal probationers in part reflect the limited availability of the sentence, their success also suggests that probation might be expanded without serious risk to the public.  Federal judges have proven their ability to select the strongest candidates for supervision over incarceration, and Congress should give them the discretion to do so in more cases.  Revocation always remains a deterrent to violations – in fact, probationers received harsher sentences than reported by the Commission, perhaps to compensate for the leniency they were originally granted.

Finally, the Sentencing Commission should avoid repeating the same mistake in future research.  Probation and supervised release are not just conceptually distinct sentences, but also as a result of their legal differences apply to different populations in ways that impact empirical analysis.  If the Commission does not separate these populations when it studies federal sentencing data, then the much larger number of defendants on supervised release will overwhelm and conceal the outcomes for defendants on probation.

While I commend the Commission for casting light into this murky corner of the federal criminal justice system, it is important to correct the record on behalf of federal probationers and ensure their success does not remain a secret.

November 16, 2021 in Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (3)

Another quartet of must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Since my last posting a few months ago, the series has added four awesome new essays, and here are links to the latest quartet:

Prior related posts:

November 16, 2021 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

November 15, 2021

Noting the SCOTUS "state of capital punishment" without discussing the state of capital punishment

Adam Liptak has this notable new New York Times "Sidebar" piece headlined "In Death Penalty Cases, an Impatient Supreme Court; Recent rulings, including one turning down a death row inmate’s request supported by the prosecution, offer telling glimpses of the state of capital punishment."  Here are excerpts (with a bit of emphasis added):

Two weeks ago, on the same day it heard arguments about the future of abortion rights in Texas, the Supreme Court turned down an appeal from a federal prisoner facing execution.  The move was in one sense routine, as the court has grown increasingly hostile to arguments made by death row inmates.   This became apparent in the final months of the Trump administration, when, after a hiatus of 17 years, the federal government executed 13 inmates.  “Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in a dissent at the time.

The court’s impatience was also evident last week at an argument over whether an inmate’s pastor could pray with and touch him in the death chamber.  Several conservative justices expressed dismay at what they said was last-minute litigation gamesmanship in death penalty cases.

Still, the case the court turned down two weeks ago was exceptional, providing a telling glimpse of the state of capital punishment in the United States.  The court rejected the inmate’s petition even though the prosecution agreed that his case deserved a fresh look.  In an 11-page dissent, Justice Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, said the majority had crossed a new bridge. “To my knowledge, the court has never before denied” such relief “in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt,” Justice Sotomayor wrote.

The case concerned Wesley P. Coonce Jr., who was serving a life sentence for kidnapping and carjacking when he helped murder another prisoner in the mental health ward of a federal prison.  A murder committed by an inmate already serving a life sentence is a capital crime, and he was sentenced to death.  Lawyers for Mr. Coonce asked the justices to return his case to an appeals court for reconsideration of his argument that he could not be executed because he was intellectually disabled.  There had been, the lawyers wrote, an important new development that could alter the appeals court’s analysis....

While the majority did not explain its thinking, a 2014 dissent from Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, provided a hint. Justice Alito wrote that the meaning of the Eighth Amendment should not be determined by “positions adopted by private professional organizations.”  The majority may also have thought that the Biden administration had its own tools to address Mr. Coonce’s case, notably by granting him clemency.

As the title of this post is meant to highlight, I am struggling a bit to see how the denial of cert by SCOTUS in Coonce serves as a "glimpse of the state of capital punishment in the United States."  For starters, the state of capital punishment in the United States is largely one of modern desuetude.  As detailed in this DPIC fact sheet, in 1999 there were 279 death sentences imposed and 98 executions; in 2019 there were 24 death sentences imposed and 22 executions.  Moreover, I am pretty sure Coonce still can have his death sentence reviewed via a 2255 motion and perhaps via other means, so maybe the case really is a "glimpse" into the various means capital defendants have to get their claims reviewed.

Moreover, as highlighted by the clemency point, what this case really shows to me is that the Biden Administration would rather push for courts to take people off death row rather than do it on their own.  After all, if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled, their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row since the Eighth Amendment precludes an execution of someone intellectually disabled.  That DOJ is merely urging here a "fresh look" strikes me far more as a "glimpse" into the state of the Biden Administration's actions on capital punishment.

November 15, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

November 14, 2021

New US Sentencing Commission podcast discusses new Judiciary Sentencing INformation (JSIN) Tool

In this post two monts ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges.  Though I have flagged in prior posts a few concerns about the construction and possible use of the Judiciary Sentencing INformation (JSIN) data tool in federal sentencing (see posts linked below), I still view JSIN as quite interesting and important data work by the USSC. 

The Sentencing Commission, on this webpage introducing JSIN, has provided an FAQ that explains the tool a bit.  But now one can also find on the USSC website this new podcast (called "Commission Chats") featuring a discussion of JSIN.  The short podcast (about 12 minutes) is described this way:

In this special episode, U.S. District Court Judge Charles R. Breyer, Acting Chair of the Commission, and Glenn Schmitt, Research and Data Director, discuss the origin and particulars of JSIN, the Commission's new online data tool developed specifically for sentencing judges. 

Though the podcast does not go much beyond a description of the basic elements of JSIN, it still makes for an interesting listen and Judge Breyer gives an explanation for some of the data choices reflected in JSIN.

Prior related JSIN posts:

November 14, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Racial, Gender Disparities and Prosecutorial Discretion: Evidence from Blakely v. Washington"

The title of this post is the title of this paper I just recently saw on SSRN that is authored by Andy Yuan and Spencer Cooper. Here is its abstract:

We investigate the causal effects of restricting prosecutorial discretion on racial and gender disparities.  Blakely v.Washington, 542 U.S. 296 (2004) exogenously introduced a significant constraint on North Carolina state prosecutors' discretion in seeking sentence enhancements by raising their burdens of proof from "preponderance of evidence" to "beyond a reasonable doubt."   Through a regression discontinuity design, we find striking evidence that restricting prosecutorial discretion eliminated the entire preexisting gender gap of men being 28% more likely to receive sentence enhancements than women.  However, we find no evidence suggesting a racial gap of sentence enhancements both pre and post Blakely.

November 14, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)