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December 18, 2021

Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories

In this post about a week ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes as part of the January 6 riot.  That article noted that sentences were still forthcoming in the most serious cases; one such case was sentenced yesterday setting a new "record" as reported in this Washington Post article headlined "Fla. man sentenced to 5 years for attacking police, the longest Jan. 6 riot sentence yet."  Technically, the WaPo headline is off, as the defendant got sentenced to 63 months, and I am not too keen on at least one element accounting for the severity of this sentence: 

Robert S. Palmer, 54, of Largo, Fla., pleaded guilty in October to assaulting law enforcement officers with a dangerous weapon, and his original plea agreement called for a sentencing range of 46 to 57 months.  But after his plea, and his entry into the D.C. jail, Palmer arranged to make an online fundraising plea in which he said he did “go on the defense and throw a fire extinguisher at the police” after being shot with rubber bullets and tear gas.

That was a lie, Palmer admitted Friday.  He had thrown a fire extinguisher — twice — a large plank and then a four-to-five-foot pole at police before he was struck with one rubber bullet.  The falsehood indicated a failure to accept responsibility for his actions, prosecutors argued, and when U.S. District Judge Tanya S. Chutkan agreed, she increased his sentencing range to 63 to 78 months, ultimately imposing a 63-month term.

Based on the rest of the WaPo article, it seems as of the day of sentencing Palmer had truly accepted responsibility.  Though it is understandable that prosecutors and the sentencing judge may have considered previous statements trying to minimize his culpability as undercutting his claims of remorse, I find it troubling that Palmer ends up facing 1 to 2 years longer in a cage simply for a few stupid comments while trying to raise money for his defense.  I have long thought some prosecutors and judges are too eager to deny acceptance of responsibility credit under the guidelines based on a defendant's dumb statement or two, and this case highlights the stakes potentially involved in doing so.

Palmer's sentence, because of its length, generated the most recent January 6 sentencing headlines.  But I saw a few more notable headlines and stories this past week that seemed worth rounding up here:

"Judge: Lack of charges for Trump over Jan. 6 is no basis for leniency for others"

"New York man sentenced to nearly 3 years in prison for threatening Sen. Raphael Warnock"

"Judge goes beyond prosecutors' request with sentence for Jan. 6 couple"

"Jan. 6 riot ‘not patriotism’ judge says in sentencing Ga. man"

"UK student gets 30-day sentence for involvement in Jan. 6 Capitol riot"

"Federal judge ordered Fort Pierce man to serve probation for activities at U.S. Capitol Jan. 6"

"Guardsman in Jan. 6 Mob Gets Probation, Still Serving in the Guard"

December 18, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (36)

December 17, 2021

Sixth Circuit reversal of denial of compassionate release shows how appellate review can sometimes reduce sentencing disparities

A few months ago in this post I flagged a lengthy CNN article discussing disparities in who was receiving compassionate release sentencing reductions in federal courts.  That CNN article featured the case of Horacio Estrada-Elias, an ill 90-year-old inmate serving a life sentence for marijuana trafficking crime, who had his request for compassionate release denied by Judge Danny Reeves in July 2021.  I was pleased to learn this week about notable updates to this story, reported in this new CNN piece headlined "A 90-year-old was serving life for marijuana despite serious illness. Now he's going home."   Here are some of the details:

In a dramatic reversal, a 90-year-old, seriously ill federal inmate serving life in prison for a nonviolent marijuana trafficking crime will go free after a judge granted him compassionate release on Tuesday -- overturning his previous order denying release.  Horacio Estrada-Elias, who was the subject of a CNN investigative story in September, is set to be freed this week after more than a dozen years behind bars....

Estrada-Elias suffers from congestive heart failure, atrial fibrillation and chronic kidney disease, and also contracted the coronavirus while in prison, according to court affidavits filed by doctors.  His prison doctor predicted in April 2020 that he had "less than 18 months" to live, and his warden recommended release, noting his spotless disciplinary record and writing last year that "he has been diagnosed with an incurable, progressive illness in which he will not recover."

Federal Judge Danny Reeves denied Estrada-Elias' motion for compassionate release in July, arguing that a life sentence is "the only sentence that would be appropriate."  But last month, an appeals court ordered Reeves to reconsider.  Two judges on a three-judge panel of the 6th Circuit Court of Appeals wrote that Reeves had "abused (his) discretion" by ignoring the fact that Estrada-Elias is unlikely to reoffend and "overly emphasizing" his nonviolent crimes. One judge dissented.

On Tuesday, the day after the formal appeal mandate was transmitted to his court, Reeves issued a new opinion approving compassionate release.  "The defendant's medical condition constitutes an extraordinary and compelling reason for release... when considered in conjunction with the defendant's advanced age," Reeves wrote, reducing Estrada-Elias' sentence to time served....

Reeves has an especially tough record on compassionate release, rejecting the vast majority of more than 100 release motions that came before him since the beginning of the coronavirus pandemic, according to a CNN analysis of court records.  In his earlier opinion, he had argued that the large volume of marijuana that Estrada-Elias trafficked had shown "a flagrant disrespect for the law that can only be reflected in an equally severe sentence."

His reversal "seems to be rooted in common sense and human dignity as opposed to legal formalities," said Alison Guernsey, a University of Iowa law professor who has studied compassionate release cases and reviewed Reeves' opinion.  She said it is uncommon for inmates who are denied compassionate release to win on appeal.

Estrada-Elias was sentenced to life in April 2008 after pleading guilty to a conspiracy to traffic tens of thousands of pounds of marijuana into and around the United States. Reeves, who handled his case, was required to give him a life sentence because he had previous drug convictions.  But the mandatory minimum law that applied was taken off the books in 2018.  If Estrada-Elias hadn't been subject to the mandatory minimum, the guideline for his sentence range would have been about 12 to 16 years in prison, according to court documents.

Estrada-Elias' case is an example of the wide disparities across the country in compassionate release during the pandemic.  In 2020 and the first half of 2021, some federal courts granted more than 40 percent of compassionate release motions in their districts, while others granted less than 3 percent, according to data from the US Sentencing Commission -- even though judges in all of the districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases.

In Estrada-Elias' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions, the data shows. Guernsey, the law professor, said the vast disparity in grant rates between courts "really calls into question the equity of compassionate release." "It appears to depend not on the gravity of your medical condition or the type of extraordinary and compelling circumstances that will dictate whether you're released," she said, "but almost a fluke of geography."

As the title of this post is meant to highlight, I think appellate review can and should play a significant role in reducing extreme sentencing outcomes that seem like a "fluke of geography." Notably, Justice Breyer's opinion for the Supreme Court in the remedial section of Booker stated that appellate review for reasonableness "would tend to iron out sentencing differences," but harsh sentencing outcomes are almost never reversed as unreasonable.  The panel Sixth Circuit opinion in US v. Estrada-Elias, No. 21-5680 (6th Cir. Nov. 24, 2021) (available here), which is unpublished(!?!) and a split decision, is a real rarity that shows reasonableness review can function to improve equity.  The majority opinion in this case starts this way:

Horacio Raul Estrada-Elias, a ninety-year-old man suffering from a terminal illness, appeals the district court’s order denying his motion for compassionate release filed pursuant to 28 U.S.C. § 3582(c)(1)(A)(i).  Estrada-Elias has spent fifteen years in prison for conspiracy to distribute marijuana.  Because of his illness, Estrada-Elias is bedridden.  He has never been convicted of a violent crime and has not received a single disciplinary infraction in prison.  The warden of the prison in which Estrada-Elias is incarcerated agrees that Estrada-Elias should be released from custody.  Despite Estrada-Elias’s age, illness, incapacity, and lack of any violent convictions, the district court denied his compassionate-release motion, finding that life in prison is “the only sentence that would be appropriate and that would protect the public” from this ninety-year-old terminally ill grandfather. R. 210 (Dist. Ct. Order at 14) (Page ID #2214) (quotation omitted).  We hold that the district court abused its discretion in denying Estrada-Elias’s compassionate-release motion.

December 17, 2021 in Booker in the Circuits, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another crazy long sentence resulting from crazy crude mandatory minimums after deadly accident in Colorado

A very sad case turned into a very extreme sentence for a truck driver in Colorado earlier this week.  This lengthy local story, headlined "Driver gets 110 years in fiery I-70 crash that killed 4," provides lots of the details and videos from the sentencing.  Here are the basics:

The man convicted after a crash on Interstate 70 that left four people dead was sentenced to 110 years in prison Monday afternoon.

Rogel Aguilera-Mederos was 23 when his semi-truck slammed into stopped traffic on the interstate near Denver West Parkway on April 25, 2019.  Four people died instantly from the impact: Doyle Harrison, William Bailey, Miguel Angel Lamas Arellano and Stanley Politano. It is believed they all died from injuries and not the resulting fire.

Aguilera-Mederos was found guilty by a jury on 27 counts in total.  The most serious charges were four counts of vehicular manslaughter.  Other counts he was found guilty of included first-degree assault, first-degree attempt to commit assault, vehicular assault, reckless driving and careless driving. He was found not guilty on 15 counts of first-degree attempt to commit assault.

Judge A. Bruce Jones sentenced Aguilera-Mederos to the required 10-year minimum for each of the six counts of first-degree assault with extreme indifference, to be served consecutively.  He was also sentenced to the required minimum of five years for 10 additional counts of attempted first-degree assault with extreme indifference.  Those will be served consecutively as well.

The judge said the legislature required him to order those sentences be served consecutively, which was why, he said, he issued the minimum sentence for those charges.  However, he did say he may have sentenced Aguilera-Mederos to more than the minimum, if not required to issue the sentences consecutively.

"In all victim impact statements I read, I did not glean from them someone saying, 'He should be in prison for the rest of his life, and he should never, ever get out," Jones said.  "Far from it. There was forgiveness reflected in those statements, but also a desire that he be punished and serve time in prison, and I share those sentiments."

In addition to the 110 years stemming from those charges, Aguilera-Mederos was sentenced to 30 years for 11 other charges that will be served concurrently.

Aguilera-Mederos was extremely emotional as he asked for forgiveness before Jones announced the sentence. "I know it has been hard and heartbreaking for everyone involved," he said though tears. "I can't sleep, I think all the time about the victims. A part of me will be missing forever, as well." Aguilera-Mederos said he took responsibility for the crash, and said it was not intentional. "I have never thought about hurting anyone in my entire life," he said....

The judge said his hands were tied when it came to sentencing, because Colorado's violent crime statute is specific. 9NEWS Legal Expert Scott Robinson said certain violent crimes require a minimum sentence for each victim, and they have to run consecutively. But he said there is one way for violent crime sentences to be reduced.

"Colorado's violent crimes statute gives judges some discretion after 180 days have passed," Robinson said. "Here, the sentencing judge, Bruce Jones, will have an opportunity to determine whether there were unusual and extenuating circumstances which would justify a reduction in the sentences imposed." The judge said he could not assure the courtroom this would be the end of this process, giving an indication that he may consider a motion like that.

The jury had to decide whether the crash resulted from a series of bad choices by the driver or a mechanical failure that the driver had no control over. Aguilera-Mederos faced 42 counts in all. He testified for hours and tearfully recounted publicly for the first time his version of what happened on that day.

Both sides agreed that his truck lost brakes at some point, but they disagreed on how or why that happened.... After the brakes were out, prosecutors argued that Aguilera-Mederos made a series of bad choices that resulted in the crash. One of them being his failure to use a runaway truck ramp on the highway.

I do not know the particulars of Colorado sentencing law, but I sure hope there is a mechanism for the reconsideration of this crazy extreme sentence before too long. But the very possibility that an awful accident can lead to an initial mandated sentence of 100+ years suggest to me that some reform of Colorado sentencing law is still needed.

Here is some other notable recent coverage of this case:

"Trucker’s 110-year sentence in fatal I-70 crash spotlights Colorado sentencing laws, prosecutors’ charging decisions"

"He Was Sentenced To 110 Years in Prison for Causing a Fatal Traffic Accident. The Judge Isn't Happy About It."

"Truck Driver Sentenced 110 Years For Deadly Crash Stemming From Brake Failure Even Though Everyone Agrees It's Unreasonable"

December 17, 2021 in Examples of "over-punishment", Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (15)

December 16, 2021

New BJS reports on "Probation and Parole in the United States, 2020" and "Profile of Prison Inmates, 2016"

Earlier this week, the Bureau of Justice Statistics released its latest detailed accounting of US prison populations (discussed here), and today brought two more notable data reports from BJS.  Here is a brief summary (with links) via the email I received this morning from the office of Justice Programs:

The Department of Justice’s Bureau of Justice Statistics today released Probation and Parole in the United States, 2020.  The report is the 29th in a series that began in 1981. It includes characteristics of the population such as sex, race or ethnicity and most serious offense of adult U.S. residents under correctional supervision in the community. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2020 Annual Probation Survey and Annual Parole Survey.

BJS also released Profile of Prison Inmates, 2016.  This report describes the characteristics of state and federal prisoners in 2016, including demographics, education and marital status.  Findings are based on data from BJS’s 2016 Survey of Prison Inmates (SPI), which is conducted periodically and consists of personal interviews with prisoners.  For the first time, the 2016 SPI measured sexual orientation and gender identity, and those estimates are included in this report.  Statistics on prisoners’ offenses, time served, prior criminal history and any housing status prior to imprisonment, including homelessness, are also presented.  The report concludes with a summary of the family background of prisoners while they were growing up and any family members who have ever been incarcerated.

I am hoping in the weeks ahead to find some time to really mine some interesting factoids from all this notable new BJS data. For now I will be content to flag just a few "highlights" from the start of these two new document:

December 16, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

DPIC releases year-end report emphasizing "continuing decline of death penalty" in 2021

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2021: Year End Report; Virginia’s Historic Abolition Highlights Continuing Decline of Death Penalty." Here is the starts of the report's introduction, with lots of data and details following thereafter:

The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.

Virginia’s path to abolition of the death penalty was emblematic of capital punishment’s receding reach in the United States.  A combination of changing state demographics, eroding public support, high-quality defense representation, and the election of reform prosecutors in many key counties produced a decade with no new death sentences in the Commonwealth.  As the state grappled with its history of slavery, Jim Crow, lynchings, and the 70th anniversary of seven wrongful executions, the governor and legislative leaders came to see the end of the death penalty as a crucial step towards racial justice.  On March 24, Virginia became the first southern state to repeal capital punishment, and expanded the death-penalty-free zone on the U.S. Atlantic coast from the Canadian border of Maine to the northern border of the Carolinas.

In the West, where an execution-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began removing prisoners from the state’s death row based on a 2019 law that redefined the crimes that constitute capital murder.  Nationwide, mounting distrust of the death-penalty system was reflected in public opinion polling that measured support for capital punishment at near half-century lows.  With Virginia’s abolition, a majority of states have now abolished the death penalty (23) or have a formal moratorium on its use (3).  An additional ten states have not carried out an execution in at least ten years.

2021 saw historic lows in executions and near historic lows in new death sentences.  As this report goes to press, eighteen people were sentenced to death, tying 2020’s number for the fewest in the modern era of the death penalty, dating back to the Supreme Court ruling in Furman v. Georgia that struck down all existing U.S. death-penalty statutes in 1972.  The eleven executions carried out during the year were the fewest since 1988.  The numbers were unquestionably affected by the pandemic but marked the seventh consecutive year of fewer than 50 death sentences and 30 executions.  Both measures pointed to a death penalty that was geographically isolated, with just three states — Alabama, Oklahoma, and Texas — accounting for a majority of both death sentences and executions.

December 16, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (2)

Though guidelines recommend federal LWOP sentence for Derek Chauvin, plea deal provides for concurrent sentence between 20 and 25 years

I just got a chance to look at the high-profile federal plea agreement entered yesterday in US District Court in Minnesota in US v ChauvinThis Justice Department press release sets out the basics of the plea and the sentencing particulars:

The Justice Department announced [on December 15] that Derek Chauvin, 45, pleaded guilty in federal court to two violations of a federal civil rights statute.

First, defendant Chauvin pleaded guilty to willfully depriving, while acting under color of law, George Floyd of his constitutional rights, resulting in Mr. Floyd’s bodily injury and death. Defendant Chauvin also agreed that the appropriate sentencing base offense level for this crime is second-degree murder because he used unreasonable and excessive force that resulted in Mr. Floyd’s death, and he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life.

Second, defendant Chauvin pleaded guilty to willfully depriving, while acting under color of law, a then 14-year-old juvenile of his constitutional rights, resulting in the juvenile’s bodily injury....

Defendant Chauvin pleaded guilty [on December 15] before U.S. District Court Senior Judge Paul A. Magnuson.  Defendant Chauvin will be sentenced at a hearing to be scheduled at a later date.  According to the plea agreement, defendant Chauvin faces a sentence of between 20- and 25-years imprisonment.  Under the terms of the plea agreement, defendant Chauvin will serve his sentence in federal custody and will not be eligible to work in any law enforcement capacity following his release.

It is notable, but perhaps unsurprising, that the DOJ press release does not highlight why the terms of Chauvin's plea in fact amount to a pretty good deal given the federal sentencing realities he was facing.  In the wake of his state convictions, Chauvin's federal conviction was a near certainty; as his plea agreement details, here is the likely guideline calculation for Chauvin's offenses: "the defendant's adjusted offense level is 43 and ... [thus] the advisory guideline range is life imprisonment."

Despite the guidelines recommending a federal LWOP sentence, federal prosecutors agreed for Chauvin to a plea deal that binds the federal sentencing judge to these terms (as specified in this Rule 11(c)(1)(C) plea): 

The Court should impose a sentence of imprisonment of no less than 240 months and no greater than 300 months (expected to serve no less than 204 months and no greater than 255 months, assuming all goodtime credit);...

The Court, pursuant to U.S.S.G. § 5G1.3(b)(2), should order that the sentence of imprisonment imposed in this case be served concurrent to the 270-month sentence imposed in State of Minnesota v. Derek Chauvin,No. 27-CR- 20-I2646 (expected to serve approximately 178 months, assuming all good-time credit); and

At sentencing, the Court, pursuant to U.S.S.G. § 5G1.3(b)(1), should adjust the sentence for any period of imprisonment/incarceration already served....

I can understand all sorts of reasons for the feds to accept these plea terms, and the agreement notes "the United States intends to advocate for a sentence of 300 months" and that the "agreed sentence is based on the parties' consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a)."  Still, I thought it worth highlighting that this especially notable case is yet another where it seems everyone agrees that the guidelines do not actually guide toward a proper sentence.

A few prior related posts:

December 16, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

December 15, 2021

Guest post: "Florida’s Catch-22 for the Innocent Defendant (and Others Wishing to to Protect Their Right Against Self-Incrimination)"

6a00d83451574769e202788010ea87200d-320wiIn the wake of a notable sentencing ruling by Florida Supreme Court earlier this month (discussed here), I asked Prof. M. Eve Hanan of the UNLV Boyd School of Law if she might like to write a guest post on the topic.  She kindly obliged:

The Supreme Court of Florida recently held that the trial judge may penalize more harshly a defendant who maintains his innocence at sentencing. Davis v. State, No. SC19-716 (December 2, 2021).

The court framed the issue as follows: “Does a trial court, when imposing a sentence on a defendant who has voluntarily chosen to allocute and maintain his innocence at the sentencing hearing, violate the defendant's due process rights by considering the defendant’s failure to take responsibility for his actions?”  The unmissable foreshadowing in the court’s framing hints that the court will assuage due process concerns with a waiver-type theory: If the defendant voluntarily speaks at sentencing, anything the defendant says, including protesting his innocence, is fair game for the judge to consider in sentencing.

A protestation of innocence is a fair characterization of Mr. Davis’ statement at sentencing.  In fact, he maintained his innocence throughout.  Unlike over 95% of defendants, he did not plead guilty but asserted his right to a jury trial.

Davis was charged with possession of a firearm by a prohibited person based on a gun found in a car in which he was a passenger.  At trial, the teenage driver testified that the gun found in the car belonged to his passenger, Davis.  The jury believed the teenage driver and convicted Davis.  No physical evidence tied Davis to the gun.

At sentencing, Mr. Davis made a statement, quoted in full in the dissenting opinion, that argued for his innocence and expressed disappointment in his attorney and in the verdict.  The allocution appears to have been cogent and polite, but, as I have argued in my article Talking Back in Court, the courtroom setting makes the defendant’s efforts to speak both risky and difficult.  In the Florida Supreme Court’s characterization of his allocution, Mr. Davis was “voicing his disagreement with the verdict, blaming the driver, the police, his lawyer, and the trial court for his conviction…” However respectful his tone or reasonable his claims, he talked back.

The sentencing range permitted any sentence from 10 to 15 years.  The judge imposed the maximum term of 15 years based on the crime, Mr. Davis’s prior record, and his “failure to take any responsibility.”

It should be noted that remorse and taking responsibility are treated as interchangeable by the court, but they are different. Remorse is an emotion. As I have argued elsewhere, it is difficult to assess remorse accurately, and that ambiguity lends itself to implicit biases that may fuel sentencing disparities. Taking responsibility, on the other hand, is often just another way of saying that the defendant confessed or pleaded guilty. In Mr. Davis’ case, the court labeled Mr. Davis’ protestation of innocence as a failure to take responsibility.

Remorse and taking responsibility are permissible mitigators in at least two areas of Florida sentencing law: in downward departures from minimum sentences and as mitigation in the penalty phase of death penalty trials.  In contrast, a lack of remorse or failure to take responsibility may not be considered as aggravating factors in death penalty cases because “[t]o equate a defendant’s not guilty plea with lack of remorse … would in effect punish the defendant for exercising rights of due process.” Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983).  And, in another death penalty case, the court held that maintaining one’s innocence, through a plea of not guilty, cannot be used to reject the mitigating factor of “appreciat[ing] the criminality of one’s conduct.” Holton v. State, 573 So. 2d 284, 292 (Fla. 1990).

The Florida Supreme Court first distinguished Davis’ prison sentence from the death penalty caselaw, which adheres to strict limits on aggravating factors.  In contrast, the sentencing judge had discretion to sentence Mr. Davis to any amount of time within the 10- to 15-year sentencing range set by statute.  Second, the Florida Supreme Court characterized as dicta the language in the death penalty cases that stated that penalizing defendants for protesting their innocence violates due process.

The Florida Supreme Court then pivoted to its waiver theory to resolve the question of whether penalizing a defendant for maintaining his innocence violates due process or the right against self incrimination in the Florida Constitution. Art. I, § 9, Fla. Const.  By choosing to allocute, the court reasoned, Mr. Davis waived his right to remain silent.  And thus, anything that he said could be held against him.  The court drew a parallel between Mr. Davis’ “unwillingness to accept the truth and take responsibility” and U.S. v. Grayson, 438 U.S. 41 (1978), in which the Court held, under federal sentencing law, that the trial judge may consider the defendant’s false trial testimony.

In his dissent, Justice Polston argued that punishing the defendant for proclaiming his innocence is analytically indistinguishable from punishing the defendant for asserting the right against self-incrimination. Moreover, the dissent went on, there must be limits to the voluntary relinquishment of the right to remain silent.  If, as both the concurrence and the dissent stressed, some considerations are categorically impermissible, they cannot be waived through some sort of assumption of risk that the defendant takes on by speaking at the sentencing hearing.  For example, the sentencing judge cannot punish the defendant for having a religious affiliation merely because the defendant volunteered information about his religion during sentencing. Likewise, the dissent argues, volunteering to speak at sentencing does not terminate the defendant’s right against self incrimination and due process.

Where does Davis leave the innocent defendant?  Where, for that matter, does Davis leave any defendant who does not confess guilt and express remorse during sentencing?  As in so many other contexts, the defendant is in a Catch-22 in which leniency is predicated on admissions of guilt at a time when the right against self-incrimination remains critical to any retrial granted on appeal.

December 15, 2021 in Procedure and Proof at Sentencing | Permalink | Comments (3)

"Would an independent commission solve the clemency backlog?"

The question in the title of this post is the headline of the this notable new commentary in the Chicago Sun-Times authored by Jacob Sullum.  Here are excerpts:

When Jimmy Carter became president in 1977, fewer than 500 clemency petitions were pending at the Justice Department’s Office of the Pardon Attorney.  When Joe Biden became president in January, he faced more than 15,000 petitions, a number that had risen to more than 18,000 as of Dec. 14.

A bill that Rep. Ayanna Pressley (D-Massachusetts) unveiled last Friday seeks to address this alarming backlog, which includes many people serving unconscionably long sentences for non-violent crimes, by eliminating the Office of the Pardon Attorney and assigning its functions to an independent, nine-member U.S. Clemency Board appointed by the president.

While Pressley is rightly concerned that meritorious cases are languishing at the Justice Department, it’s not clear that her FIX Clemency Act would work as advertised....

The surge in commutation petitions followed an explosion in the federal prison population, which rose ninefold between 1980 and 2013, from fewer than 25,000 to more than 219,000. Since then, the total has fallen by 29%, but it is still more than six times the number in 1980.

Sentences also have increased dramatically. Current federal prisoners, 46% of whom are serving time for drug offenses, received an average sentence of 147 months, nearly three times the average sentence imposed in 1986.... 

So far, Biden has not granted any pardons or commutations.  But when he gets around to it, recent history suggests the Office of the Pardon Attorney will be ill-equipped to help him....

Pressley and her allies argue that the current system entails an unavoidable conflict of interest, since it charges the same department that sends people to federal prison with deciding whether to recommend that the president shorten their sentences.  Former prisoners such as Danielle Metz and Alice Marie Johnson, who were serving life sentences for non-violent cocaine offenses before they were freed by Obama and former President Donald Trump, respectively, agree with this critique and support Pressley’s bill....

One way or the other, the buck stops with the president, who has plenary power to grant clemency.  If Biden is serious about trying to make up for his past as a lock-’em-up legislator, he should get started.

Prior recent related post:

December 15, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative publishes report on "Winnable criminal justice reforms in 2022"

Naila Awan has authored this new report for the Prison Policy Initiative under the title "Winnable criminal justice reforms in 2022."  Here is its introduction and then links to the eight categories of reform ideas:

This year, we’ve expanded our annual guide on state legislative reforms that we think are ripe for victory. While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  And for the first time, we have added some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other advocates and state legislators.

December 15, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

New BJS report documents big decrease in prison admissions drove 15% imprisonment rate decline in 2020

The Bureau of Justice Statistics has released its latest detailed accounting of US prison populations in this big report titled "Prisoners in 2020 – Statistical Tables."  The BJS data capture realities at yearend 2020, and thus reflects lots (but not all) COVID-era developments. Here is part of the start of the document, along with some of its "highlights":

In 2020, the number of persons held in state or federal prisons in the United States declined 15%, from 1,430,200 at yearend 2019 to 1,215,800 at yearend 2020. Only Alaska showed an increase (2%) in its prison population, while other jurisdictions showed declines of 7% to 31%.  The number of persons sentenced to more than 1 year in state or federal prison decreased from 1,379,800 in 2019 to 1,182,200 in 2020. Te combined state and federal imprisonment rate for 2020 (358 per 100,000 U.S. residents) represented a decrease of 15% from 2019 (419 per 100,000 U.S. residents) and a decrease of 28% from 2010 (500 per 100,000 U.S. residents).

The COVID-19 pandemic was largely responsible for the decline in prisoners under state and federal correctional authority.  Courts significantly altered operations for part or all of 2020, leading to delays in trials and/or sentencing of persons, and this was refected in the 40% decrease in admissions to state and federal prison from 2019.  While the number of releases also declined during 2020, releases occurred at a slower rate (10%) than the decrease in admissions. Although deaths represented 1% of the total releases from prison in 2020, the number prisoners that died under the jurisdiction of state or federal correctional authorities in 2020 (6,100 prisoners) increased 46% from 2019 (4,200).

From 2019 to 2020, the decline in the number of females sentenced to more than 1 year in prison (down 22%) outpaced the decrease in sentenced male prisoners (down 14%).  The imprisonment rates for U.S. residents in all racial or ethnic categories decreased by 12% to 16% from 2019 to 2020 and by at least 25% from 2010 to 2020.  The imprisonment rate for black U.S. residents decreased 37%, from 1,489 per 100,000 in 2010 to 938 per 100,000 in 2020.

Highlights

  • At yearend 2020, the number of prisoners under state or federal jurisdiction had decreased by 214,300 (down 15%) from 2019 and by 399,700 (down 25%) from 2009, the year the number of prisoners in the United States peaked.
  • Nine states showed decreases in the number of persons in prison of at least 20% from 2019 to 2020.
  • The prison populations of California, Texas, and the Federal Bureau of Prisons each declined by more than 22,500 from 2019 to 2020, accounting for 33% of the total prison population decrease.
  • In 2020, the imprisonment rate was 358 per 100,000 U.S. residents, the lowest since 1992.
  • From 2010 to 2020, the sentenced imprisonment rate for U.S. residents fell 37% among blacks; 32% among Hispanics; 32% among Asians, Native Hawaiians, and Other Pacifc Islanders; 26% among whites; and 25% among American Indians and Alaska Natives.
  • The number of admissions to federal prison (down 19,000) and to state prison (down 211,800) both declined by 40% from 2019 to 2020.
  • Releases from federal and state prisons decreased during 2020 (down 58,400 or almost 10% from 2019), but at a lower rate than the decrease in admissions.

I find it fascinating and telling that our nation actually did not release more people from prison during an historic pandemic, but it did have a harder time continuing to send a massive number of new people to prison. I am thus tempted to joke that, like lots of other segments of our society, America's mass incarceration system has also had "supply chain" issues that has impacted its usual functioning. Whether these patterns have continued into 2021 and beyond as this pandemic lingers on will be worth watching closely.

December 15, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

December 14, 2021

Death threats to Speaker Pelosi leads to 28-month (below guideline, above plea deal) federal sentence

This Politico article reports on a notable federal sentencing today under this full headline: "QAnon follower gets 28-month sentence for death threats to Pelosi: Judge says continuing election-fraud rhetoric from Republican politicians makes defendant an ongoing threat."  Here are some of the details:

A QAnon follower from Georgia who brought an arsenal of weapons to Washington just after the Jan. 6 riot at the Capitol was sentenced Tuesday to 28 months in prison for making crude threats to kill Speaker Nancy Pelosi and D.C. Mayor Muriel Bowser.

Cleveland Meredith Jr., 53, missed then-President Donald Trump’s Jan. 6 rally due to trouble with his truck, but was arrested the following day at a hotel near the Capitol after family members alerted the FBI to threatening text messages he’d sent. In a trailer outside the hotel, police found a pistol, an assault rifle and about 2,500 rounds of ammunition, as well as a telescoping gun-sight....

With credit for the more than 11 months he has already served at a D.C. jail facility since his arrest plus good behavior credit, Meredith is likely to spend roughly another 14 months in federal prison before being released....

During a sentencing hearing that spanned more than three hours, Jackson read aloud the series of texts Meredith sent during a drive from Colorado to D.C. and after he arrived in Washington. “Thinking about heading over to Pelosi [expletive]’s speech and putting a bullet in her noggin on Live TV,” Meredith wrote in a message to his uncle on Jan. 7.  “I may wander over to the Mayor’s office and put a 5.56 in her skull,” Meredith added in an earlier message....

In her statement, Jackson railed against an increase in extreme political language, and she noted that many political leaders continue to make false claims about fraud in the 2020 election. “The heated inflammatory rhetoric that brought the defendant to the district has not subsided,” the judge said. “The lie that the election was stolen and illegitimate is still being perpetrated. Indeed, it’s being amplified not only on social media, but on mainstream news outlets and…it’s become heresy for a member of the president’s—the former president’s party to say otherwise.”

During a brief, emotional statement to the court, Meredith insisted that the threats he issued and his talk of “war” in the Capitol were just overheated rhetoric. “I had no intention. It was political hyperbole that was too hyper,” Meredith said. “I was out of control that day.”...

Meredith pleaded guilty in September to a felony threat charge that carries a maximum of five years in prison. The plea deal contemplated a sentence of between six months and two years. However, Jackson found that the non-binding sentencing guidelines actually called for a stiffer sentence of between 37 months and 46 months because the threat to Pelosi targeted a government official.

“The fact that the government didn’t point to this before is odd,” said the judge, an appointee of former President Barack Obama. “It’s hard to suggest that these threats weren’t about or motivated by the victim’s performance of their official duties…The defendant was not incensed at Nancy Pelosi because she was a next-door neighbor who parked in his parking spot or a former romantic or business partner.”

Kiyonaga complained bitterly about the increase in the recommended sentencing range and suggested that the change will discourage other defendants from agreeing to plea deals. “I painstakingly negotiated a plea agreement with the government,” he said. “I think the government has gotten a windfall that it should not take advantage of. I think that will reverberate.”

The judge ultimately sentenced Meredith below the guidelines range, citing in part the harsh pandemic-related conditions at the D.C. Jail, where he is housed with others awaiting trial on charges related to the Jan. 6 Capitol riot.

December 14, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (4)

"The Effectiveness of Certificates of Relief: A Correspondence Audit of Hiring Outcomes"

The title of this post is the title of this new article authored by Peter Leasure and Robert J. Kaminski just published in the Journal of Empirical Legal Studies.  Here is its abstract:

Although there are several collateral consequence relief mechanisms that could theoretically be used to improve employment outcomes for those with criminal history, many of these mechanisms are available only for first-time/low-level individuals or possess other requirements that limit their accessibility.  Recognizing these facts, some jurisdictions have created certificates of relief, which are generally more accessible than other relief mechanisms.  The goal of the current study was to test whether one state's (Ohio) certificate could improve hiring outcomes for men with criminal histories comprised of felony theft, felony drug possession, and misdemeanor drug paraphernalia convictions.  This goal was achieved with the use of two field experiments.  Results showed that certificate holders with criminal history received significantly fewer callbacks than those with no criminal record and fared no better than those with an identical criminal record and no certificate.  Further, African-American applicants received significantly fewer callbacks than white applicants in all criminal record categories.

December 14, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

After Missouri expands parole eligibility for certain juve offenders, Bobby Bostic secures parole 25 years after getting 241-year sentence

The name Bobby Bostic may be familiar to some readers, as he became a focal point for debate and litigation over the application of the Supreme Court's Graham Eighth Amendment ruling prohibiting LWOP sentences for juvenile nonhomicide offenders.  Back in the 1990s, Bostic received in Missouri state court a sentence of 241 years for armed robberies and would possibly not be eligible for parole for nearly 100 years under Missouri law at that time.  Back in 2018, I blogged here about the sentencing judge's op-ed urging the US Supreme Court to take up Bostic's cert petition, but the Justices declined to do so.

Fast forward a few years, and Bostic's case in the news again reporting that MIssouri law has changed and that Bostic has now secured parole after serving a quarter century behind bars.  This local article, headlined "Sentenced to 241 Years as a Teen, Bobby Bostic Wins Parole," provides these details:

A Missouri man sentenced to 241 years in prison for crimes committed when he was just sixteen will be released next year after a quarter-century behind bars.  The ACLU announced today that 42-year-old Bobby Bostic has been granted parole.  He will be released late next year after being provided courses designed to aid him in his re-entry.

On December 12, 1995, Bostic and 18-year-old Donald Hutson were high on PCP when they robbed a group of St. Louisans delivering holiday gifts to a needy family. In the course of the armed robbery, Bostic shot one victim in the side.  Hutson shot another individual.  Both the gunshot victims survived.

Bostic was charged with 18 felonies.  He took his case to trial and in 1997 was found guilty on all counts. His earliest parole date was set for the far-flung year of 2201.  The trial's judge, Evelyn Baker, told Bostic at his sentencing, "You're gonna die with your choice," and added, "Nobody in this room is going to be alive in the year 2201."

Baker retired in 2008.  Two years later, the U.S. Supreme Court delivered a ruling in Graham v. Florida that “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Bostic's 241-year sentence, however, was not technically a life sentence. In theory, he would have been eligible to be considered for parole at the age of 112....

In recent years, Judge Baker has come to regret the 241-year sentence she handed down to Bostic, writing in an op-ed published in Riverfront Times last year that, "At the time, I didn’t know, and the criminal justice system didn’t understand how the juvenile brain worked and how long it took to mature."

In August of this year, the Missouri legislature passed a state statute allowing individuals who are serving "de facto" life sentences for nonhomicide crimes committed as juveniles to receive parole hearings after 15 years of incarceration.  The ACLU says that, in addition to Bostic, there are about 100 other individuals in Missouri prisons who meet this criteria.

Bostic had a parole hearing in November that, according to the ACLU, was "one of the first under the new law."  At Bostic's side was the same judge who had sentenced him to nearly a quarter of a millennium in prison.  At the parole hearing, Baker advocated for Bostic's release....

Donald Hutson, Bostic's accomplice in 1995, died in prison in 2018.

Prior related post:

December 14, 2021 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

December 13, 2021

"Prison Reform Should Be a Bipartisan Issue"

This title of this post is the headline of this effective Wall Street Journal commentary authored by Marc M. Howard. I recommend the full piece and here are excerpts:

I was happy to learn that Rep. Marjorie Taylor Greene and several other members of Congress visited the District of Columbia Jail recently.  And I was flattered that her ensuing report, “Unusually Cruel,” quoted from my book and even borrowed its title.  As someone who frequently visits prisons, I believe it is vital that people see firsthand the conditions of incarceration around the country — and realize the humanity of those behind bars.

Mrs. Greene’s report focuses on the “inhumane” conditions in which the Jan. 6 defendants are being held. “Cells in the January 6 wing of the CTF were extremely small, composed of a single toilet, sink and a small bed cot,” she notes. “The walls of the rooms had residue of human feces, bodily fluids, blood, dirt and mold. The community showers were recently scrubbed of black mold — some of which remained.”  The report adds that inmates said they “did not have access to their attorneys, families or proper nutrition.”

These observations match the standard story of incarceration in America, and they should lead people to reflect on how they would feel if they or a loved one were held in such conditions.  This isn’t an abstract exercise, as 45% of Americans have had an immediate family member incarcerated.

Deplorable physical conditions are shockingly common, with prisons and jails across the country characterized by filth, violence, overcrowding and lack of privacy.  Most correctional facilities allow limited movement and communication, scant access to work or educational programming, and hostile and dehumanizing relations with staff....

Across the country, prison reform has been a largely bipartisan issue for nearly a decade.  The First Step Act of 2018 passed overwhelmingly in both houses of Congress and was signed by President Trump.  It was the most significant federal criminal-justice reform aimed at reducing incarceration in the past 50 years.  States led by Republicans (including Texas, Mississippi, Georgia, Louisiana and South Carolina) and Democrats (New York, New Jersey, Connecticut and California) have made conscious efforts to reduce their incarceration levels.

Although the events of Jan. 6 have become polarizing in American politics, the situation at the D.C. Jail has created an opportunity for both sides to appreciate the disturbing realities of prison in America.  I hope Mrs. Greene and others on the right who are appalled by the physical conditions they witnessed will become advocates for reforming the laws and policies that support a system that currently treats prisoners inhumanely.

I also hope that people on the left — including those who already favor prison reform but view it primarily through a racial-justice lens — will resist their own vindictive impulses, stop demonizing their political opponents, and support Jan. 6 defendants’ right to proper treatment.

December 13, 2021 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Notable new report from For The People about early implementation of California’s Prosecutor-Initiated Resentencing law

I just learned about this notable new report from For The People under the title "Prosecutor-Initiated Resentencing: California’s Opportunity to Expand Justice and Repair Harm."  Here is part of the report's executive summary and key findings:

Until relatively recently, California was home to the largest prison system in the U.S. From 1975 to 2006, California’s prison population saw an 800% increase, from less than 20,000 people to 163,000, as the state built 22 of its 34 prison facilities.  Though California has enacted a series of reforms in the last decade, over 99,000 people remain incarcerated in the state’s prisons. Many of these people, disproportionately people of color, are serving excessively long sentences and could be released without posing a threat to public safety.

California’s Prosecutor-Initiated Resentencing (PIR) law (AB 2942), championed by For The People’s founder and passed in 2018, gives District Attorneys (DAs) a groundbreaking tool to directly and immediately redress the harm caused by mass incarceration and excessive sentences.  The law allows DAs to take a “second look” at past sentences that may no longer be in the interest of justice and ask the court to recall sentences and resentence people, resulting in their earlier release and reunification with family and community. 

This report looks at how specific policies led to mass incarceration in California, reviews the evidence in support of releasing people who no longer need to be incarcerated, examines the opportunity for PIR, and shares the real impacts of resentencing on people who have already been released. Finally, the report offers recommendations on implementation and opportunities for further reform.

This press release provides a partial accounting of "key report finding":

And this Washington Post opinion piece by Hillary Blout, a former prosecutor who founded For The People, makes the case for Prosecutor-Initiated Resentencing (PIR) under the headline "Thousands of incarcerated people deserve to come home. Here’s how prosecutors can help." Here are excerpts with links from the original:

Beyond California, For The People has supported the passage of three laws just like the original. Today, IllinoisOregon and Washington state have all passed laws giving prosecutors the ability to revisit old cases — and more states, including New YorkMinnesota and Massachusetts, are considering PIR bills.

As this movement spreads, many may wonder, “Is this safe?”  The myth goes that long sentences are crucial to increasing public safety.  But research has shown that the length of a sentence doesn’t actually have the effect of deterring more crime.  Research also shows that people age out of crime, and that recidivism rates decline with age and are the lowest among people who have served the longest sentences for serious crimes.

The PIR process includes a meticulous review of an incarcerated person’s history, rehabilitation and in-prison behavior, as well as robust reentry planning. It also considers mitigating factors from the person’s childhood and develops safeguards for the future.  This helps ensure that our communities will be protected and even benefit from the person’s return home.

Regular readers know I am a big fan of second-look sentencing mechanisms, and some may recall that many years ago I gave a talk arguing that prosecutors should be much more involved in reviewing past sentences, which got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  So I am extremely pleased to see this idea in actual practice in a growing number of jurisdictions. 

December 13, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Heritage Foundation and NACDL release "Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later"

This NACDL news release discusses a notable new report on a depressingly old problem with federal criminal law (and sentencing).  Here are excerpts from the release, with links from the original:

The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) today released Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later. The report is co-authored by Zack Smith, Heritage legal fellow, and Nathan Pysno, director of economic crime and procedural justice at NACDL.

This new report — a study of the 114th Congress — revisits a 2010 joint report by The Heritage Foundation and NACDL: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which found that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57% lacked an adequate guilty-mind requirement.

The new study finds that Congress still regularly introduces bills with new criminal provisions that contain mens rea requirements that are not sufficiently protective. In fact, 42% of the bills analyzed had criminal intent requirements that were considered inadequate.

Ensuring an adequate mens rea provision is included in statutes and regulations that create criminal offenses is critical. The average person is likely unaware of the vast majority of these crimes and may have no effective notice whatsoever that his or her conduct may be prohibited. It is difficult to imagine how the average person could be expected to “know” the law when no one, including our lawmakers and the U.S. Department of Justice, knows how many federal crimes are actually on the books.

As explained in this new report’s foreword, co-authored by former Attorney General Edwin Meese III and Global CEO of Fair Trials and former NACDL Executive Director Norman L. Reimer:

“The findings of this new report, Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later, are encouraging, but show that further progress is needed. We hope that Representatives, Senators, their staff members, and anyone else who reads this new report take its suggestions seriously. Fostering awareness of the problem of inadequate criminal intent requirements in criminal laws is the first step toward principled reform. Taking appropriate action is the next step.”...

As set forth in this new report’s conclusion:

“Once again, [The Heritage Foundation and NACDL] urge legislators to seriously consider and to adopt the recommendations made in the report, as well as those in the original report. When Congress makes new criminal laws, it should prioritize clear drafting of new criminal provisions and use standardized mens rea terminology consistently across those new statutes.  Each chamber of Congress should refer statutes that create new crimes to its respective judiciary committee, where those committees should consider the appropriate mens rea, providing for defenses, and opportunities to cure in appropriate circumstances.  Similarly, Congress should consider enacting default mens rea legislation. Finally, Congress should require that the number of federal crimes currently on the books be counted.”

Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later is available at: www.heritage.org/without-intent-revisited and www.nacdl.org/WithoutIntentRevisited.

The 2010 joint report by the Heritage Foundation and NACDL – Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law – is available at: www.heritage.org/crime-and-justice/report/without-intent-how-congress-eroding-the-criminal-intent-requirement and www.nacdl.org/withoutintent.

December 13, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

December 12, 2021

Two new NPR pieces spotlight frustrations with Biden Administration among criminal justice reform advocates

This weekend has brought these two versions of NPR coverage of a topic familiar to readers of this  blog, namely the failure to see much tangible criminal justice reform action from the Biden Administration so far:

"Criminal justice advocates are pressing the Biden administration for more action"

"Activists wanted Biden to revamp the justice system. Many say they're still waiting"

Here are excerpts from the second piece:

People working to overhaul the criminal justice system say they're frustrated with the Biden administration after they've waited nearly a year for the White House to take major steps on clemency and sentencing reform. "I think we're at a point where we're saying, mere lip service isn't enough," said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. "We want to see some concrete action."

For them, concrete action could include granting clemency to the few thousand people who were released to home confinement by the Trump administration at the start of the pandemic. President Biden could ensure those people remain free with the stroke of a pen. But he hasn't done that yet, despite months of pressure....

Michael Gwin, a White House spokesman, told NPR in a written statement that the president has taken steps to reform the system "since his first day in office." "This includes restoring the Department of Justice's Office for Access to Justice, implementing new restrictions on chokeholds and no-knock warrants for federal law enforcement, ending contracts with private detention facilities, and expanding access to re-entry services for formerly incarcerated individuals," Gwin said.

The advocates say they're happy to give credit where it's due.  They praised the Justice Department for rescinding a Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And they're happy the DOJ has launched four big civil rights investigations of police departments.

But they've also taken note of this fact: the federal prison population has increased by some 5,000 people during Biden's tenure, according to Nazgol Ghandnoosh, a researcher at the Sentencing Project....  While homicides and shootings have increased in many parts of the country, the vast majority of those crimes are handled by state and local authorities, not the federal government.  Most people in federal prison are there for breaking drug or immigration laws, Ghandnoosh said.

Ghandnoosh had expected to see more than "small tinkering" by the new team in Washington. "We would expect to hear from the attorney general and the president very vocal and unequivocal support for federal sentencing reform that's being considered right now and that could help to give those initiatives an important boost," she added.

Another criticism is about personnel.  The White House hasn't taken any action to fill vacancies on the Sentencing Commission, which sets federal sentencing guidelines for many crimes.  "In the past, some of the best reforms [that] have been achieved in the last 10 years have been at the Sentencing Commission and they haven't even nominated people to fill this vacant body," said Ring of FAMM.

Meanwhile, key allies of the White House, including Senate Judiciary Committee Chairman Dick Durbin, D-Ill., are going public with their demand that the Justice Department fire the head of the federal prison system.  They say the Federal Bureau of Prisons mismanaged the pandemic and that there are several other serious problems in the system.

Democrats control both chambers of Congress with small majorities.  But the administration hasn't used the bully pulpit to promote the EQUAL Act, a bill that would equalize the penalties for crack and powder cocaine.  Those laws have punished Black people more harshly than white people for decades for essentially the same crime.

December 12, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (20)

Accounting for the first 50 sentences imposed on January 6 rioters

This new CNN piece, headlined "After 50 rioters sentenced for January 6 insurrection, a debate rages over what justice looks like," reports on a new analysis of sentences for the high-profile crimes that kicked off 2021.  I recommend the lengthy piece in full, and here are parts of how it gets started:

Of the 50-plus defendants who have been sentenced for their role in the January 6 attack on the US Capitol, fewer than half were sent to jail for their crimes. Most received an assortment of lesser penalties, including brief terms of house arrest, a couple years of probation, four-figure fines or court-ordered community service, according to a CNN analysis.

The milestone of 50 sentencings was hit on Friday, a busy day in court, with six hearings on the schedule. Four defendants got probation Friday, including a pair of veterans from Wisconsin, while one man who stole a beer from House Speaker Nancy Pelosi's office got 20 days in jail.

As federal prosecutors have brought cases against nearly 700 rioters, a heated debate has emerged over what justice should look like for such an unprecedented assault on democracy. This debate has raged on social media and in the halls of Congress. It has also played out among the two dozen judges handling the cases at the federal courthouse in Washington, DC.

After 50 sentencings, a split has developed on the bench: One group of judges has handed down stiffer punishments to rioters, including time behind bars. While a more skeptical group of judges have rebuffed the Justice Department and instead imposed fines and probation, which means the rioters will avoid jail but stay under government supervision for years to come.

This dynamic won't last forever -- this initial wave of guilty pleas and sentencings will eventually be followed up by dozens of more serious felony cases with longer prison terms. But for now, the dizzying array of outcomes has caused some headaches. Judges are questioning the department's approach to January 6, and politicians from both sides have fanned the flames....

These wings of the court don't fall along political lines. There are GOP-appointed skeptics, and some Democratic appointees handing down tough punishments. But the dynamic is nuanced. This has also forced partisan players on both sides to contort their ideological views to fit the moment.

Democratic lawmakers and activists are calling for more incarceration and want judges to throw the book at rioters, while many Republican officials and right-wing influencers have become newfound supporters of improving jail conditions for what they call "political prisoners."

Some of many prior related posts:

UPDATE: I just notice this recent AP article discussing some of the sentencings for some of the January 6 crimes under the headline "Capitol rioters’ social media posts influencing sentencings." Here is how the extended piece gets started:

For many rioters who stormed the U.S. Capitol on Jan. 6, self-incriminating messages, photos and videos that they broadcast on social media before, during and after the insurrection are influencing even their criminal sentences.

Earlier this month, U.S. District Judge Amy Jackson read aloud some of Russell Peterson’s posts about the riot before she sentenced the Pennsylvania man to 30 days imprisonment. “Overall I had fun lol,” Peterson posted on Facebook.  The judge told Peterson that his posts made it “extraordinarily difficult” for her to show him leniency.

“The ’lol’ particularly stuck in my craw because, as I hope you’ve come to understand, nothing about January 6th was funny,” Jackson added.  “No one locked in a room, cowering under a table for hours, was laughing.”

Among the biggest takeaways so far from the Justice Department’s prosecution of the insurrection is how large a role social media has played, with much of the most damning evidence coming from rioters’ own words and videos.

December 12, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (12)