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December 24, 2021

Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

This extended AP article provide a helpful accounting of what we might now expect in sentencing of former Minneapolis police officer Kim Potter after a jury convicted her yesterday on two counts of manslaughter.  Here are excerpts:

The former suburban Minneapolis police officer who said she confused her handgun for her Taser when she killed Daunte Wright will be sentenced in February after a jury convicted her Thursday on two counts of manslaughter.  The most serious charge against Kim Potter — first-degree manslaughter — carries a maximum penalty of 15 years in prison....

Under Minnesota statutes, Potter, who is white, will be sentenced only on the most serious charge of first-degree manslaughter.  That’s because both of the charges against her stem from one act, with one victim.

The max for that charge is 15 years.  But state sentencing guidelines call for much less.  For someone with no criminal history, like Potter, the guidelines range from just more than six years to about 8 1/2 years, with the presumptive sentence being slightly over seven years.

Prosecutors have said they'd seek a sentence above the guideline range, while the defense said they would seek no prison time.  In order for Judge Regina Chu to issue a sentence that's outside the guideline range, she would first have to find either mitigating or aggravating factors.  Both sides are expected to file written arguments.

Prosecutors say aggravating factors in Potter's case include that she caused a greater-than-normal danger to the safety of other people when she fired into the car, including danger to her fellow officers, to Wright’s passenger and to the couple whose car was struck by Wright’s after the shooting.... Prosecutors also say Potter abused her authority as a police officer.

Defense attorney Paul Engh said the defense would be seeking a “dispositional departure” from sentencing guidelines. Under state statutes, a mitigated dispositional departure occurs when guidelines recommend a prison sentence, but a judge allows the sentence to be “stayed" — meaning the defendant doesn't go to prison....

In arguing that Potter should remain free on bail until she is sentenced, Engh said: "She is amenable to probation. Her remorse and regret for the incident is overwhelming.  She’s not a danger to the public whatsoever.  She’s made all her court appearances.” Chu was unmoved, and Potter was taken into custody after the verdicts were read....

The defense can also make the argument that as a police officer, Potter's confinement would likely be harsher than most because of the need to keep her safe.  The former Minneapolis police officer convicted in George Floyd's death, Derek Chauvin, has been in solitary confinement for that reason....

In determining a final sentence, Chu will consider the arguments made by both sides, as well as victim impact statements.  She has also ordered a pre-sentence investigation of Potter.  And Potter can make a statement at her sentencing hearing — a time when judges are typically looking to see if a person takes responsibility for the crime or shows remorse....

No matter what sentence Potter gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of their penalty in prison and the rest on supervised release, commonly known as parole.  That means if Potter is sentenced to the presumptive seven years, she would likely serve about four years and nine months behind bars, and the rest on supervised release.  Once on supervised release, she could be sent back to prison if she violates conditions of his parole.  If she gets the maximum 15 years, she could be behind bars for 10 before being placed on parole.

December 24, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (9)

December 23, 2021

Might we celebrate this Festivus with a polite airing of sentencing grievances?

I am not quite sure if Festivus is still something in the pop culture ether, but I am sure that I still get a kick out of reviewing the faux-holiday's grand traditions,   And I am especially sure that, thanks to a seemingly endless pandemic and a toxic political environment, the Festivus tradition of airing grievances seems to be now an almost daily ritual for many. 

That all said, especially as another notable sentencing year winds down, I am eager to yet again welcome and encourage any and all readers eager to air their sentencing grievances in the comments.  As the title of this post suggests, I urge everyone to make extra efforts to be extra polite in any Festivus grievances being aired.  I hope that is not too much to ask in a holiday season.  

I will try to set the tone with a grievance that will be familiar to regular readers: I am disappointed we did not get nominations to the US Sentencing Commission in 2021.  But I am quite optimistic that we will be getting nominations in early 2022, and I am hoping a new USSC will demonstrate all sorts of "feats of strength" as it gets to work on long overdue federal sentencing reform projects.

Others?

December 23, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (14)

BOP chief from Trump Administration says "prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief"

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "To fix our prison system, we need far more than a change in leadership."  It is worth reading in full, and here are some extended excerpts:

U.S. prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief.  In fact, we’ve already tried that. Carvajal, appointed last year, became the sixth director or acting director in just five years.

The reality is that one person can only do so much. I should know. I was one of those six.

The news that sparked Durbin’s ire was an Associated Press report revealing that numerous federal prison workers have been arrested, convicted or sentenced for crimes since the start of 2019.  Sadly, corruption and other malfeasance within prison systems are not uncommon.  But as Durbin rightly noted, “it’s clear that there is much going wrong in our federal prisons, and we urgently need to fix it.”...

How do we move forward?  We must rethink our overall approach to incarceration to ensure that only the right people — those who need to be separated from society or require intensive reentry programming — are confined for the appropriate amount of time.

Common-sense sentencing reforms are a good place to start.  These include mandating a greater reliance on drug courts, community service and other alternatives to prison, such as halfway houses. It also means eliminating mandatory minimum penalties for drug crimes, which, among other problems, result in long sentences that drive prison populations up.

On the back end of the system, we need more intensive reentry programs to ensure that the more than 650,000 people leaving prison annually find the jobs, housing and healthcare they need to lead stable lives — and remain crime-free. Congress started this effort with bipartisan passage of the First Step Act of 2018 (co-sponsored by Durbin), but BOP needs sufficient resources to fully implement this law.

We also must invest in the recruitment, retention and training of correctional officers, while paying them on par with what other law enforcement officers earn. While the conduct spotlighted in recent news reports was reprehensible, it does not reflect the majority of BOP officers who put their lives on the line every day, and suffer disproportionately high rates of PTSD and suicide. They deserve to lead healthy lives, and their mental health has a direct impact on the orderly functioning of our prisons. It must be our concern.

Beyond such measures, Congress must tackle what should be the easiest, but may be the most divisive, piece of the debate: closing some of America’s oldest and costliest federal prisons.  Shuttering these aging lock-ups, some of which are more than a century old, would allow the BOP to reallocate staff and resources to the remaining facilities, improving safety and security while strengthening programs and services.

Closing prisons may be a hard sell to some, particularly to those in Congress.  But it has been done recently, at least at the state level. South Carolina, for example, has closed six correctional centers in the past decade, as its prison population declined following bipartisan passage of sentencing and corrections reforms in 2010.

One step the Attorney General and Congress should quickly consider is a recommendation from the Council on Criminal Justice’s Task Force on Federal Priorities, which called for creation of an independent oversight board for BOP.  This would bring outside expertise to bear on the agency’s multiple challenges while retaining the career leadership that historically has served the agency well.  The board would also provide political cover for harder choices that agency leaders and elected officials are sometimes reluctant or unable to make.

While the recent news about the BOP is disturbing, I hope it serves as a reminder of the need to rebuild our criminal justice system so that it is smaller, less punitive, more humane and safer for all.  With political will, independent oversight and an unwavering commitment, we can make holistic change to a system long in need of it.

December 23, 2021 in Criminal justice in the Trump Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

"Legislative Regulation of Isolation in Prison: 2018-2021"

The title of this post is the title of this new article now on SSRN authored by Judith Resnik, Jenny E. Carroll, Skylar Albertson, Sarita Benesch and Wynne Muscatine Graham. Here is its abstract:

Legislative activity seeking to limit or abolish the use of solitary confinement (often termed “restrictive housing”) has increased in recent years.  Efforts to “stop” solitary (nationally and internationally) are underway through organizing, hunger strikes, litigation, administrative reform, and media campaigns.  The goal is to end the practice of leaving people in cells for hours, days, months, and years on end.

This paper provides an overview of recent pending and enacted legislative proposals. From 2018 to 2021, legislation aiming to limit or end the use of isolation in prison was introduced in more than half of the states and in the U.S. Congress.  As of the summer of 2021, legislators had proposed statutes in 32 states and in the U.S. Congress, and both states and the federal system have enacted a variety of provisions.

The statutes vary in scope.  Some are comprehensive and address the treatment of all people incarcerated within a prison or jail system and impose limits on the reasons that prison authorities can use to put individuals into isolation, the duration of such confinement, and/or the extent to which the conditions of isolation can depart from those in general population.  In addition, some statutes focus on the use of solitary confinement for subpopulations, such as pregnant or young people, or people who have received certain medical or mental health diagnoses.  Many statutes have reporting requirements to create some measures of transparency and data collection.  A few aim to create monitoring and oversight beyond the prison administration.

This paper hones in on examples of enactments by detailing statutes in Colorado, Massachusetts, Minnesota, New Jersey, and New York.  This paper also provides an integrated overview of the features of the various statutory regimes.  In addition, because Pennsylvania legislators invited members of the Liman Center to testify in August of 2021 on a proposed bill, the paper contextualizes the proposed Pennsylvania bill within the recent nationwide waves of legislative activity and analyzes the text of the proposed bill.  This paper also draws on other work of the Liman Center's researchers, who are part of collaborative efforts underway since 2013 to track the rules governing solitary confinement, the numbers of people held in prison in isolation, and the conditions of their confinement. Time-In-Cell 2019: A Snapshot of Restrictive Housing, published in September 2020, is the latest report documenting these efforts. It is available at: https://law.yale.edu/sites/default/files/area/center/liman/document/time-in-cell_2019.pdf.

This legislative analysis will, we hope, be helpful in formulating and evaluating means to limit or end the use of isolation as a disciplinary or “protective” measure.  The Liman Center will also provide periodic updates of legislative activity and trends.

December 23, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

December 22, 2021

With new OLC memo allowing home confinement cohort to stay home, what now of Prez Biden's nascent clemency efforts?

As noted in this post yesterday, some federal prisoners released due to COVID to serve their sentences on home confinement pursuant to the CARES Act received a holiday present in the form of a new opinion from the Justice Department concluding the Bureau of Prisons has "discretion to permit prisoners in extended home confinement to remain there" even after the pandemic ends.  Prior to this new opinion, there was serious concern that thousands of federal prisons might have to be sent back to prison en masse when the pandemic was declared over. 

Indeed, the concerns about having to send thousands of low-risk and well-behaving folks back to federal prison was so strong that it prompted, as detailed in prior post here and here, the Biden Administration reportedly started to gear up a screened program for (mass?) clemency program focused on nonviolent drug offenders on home confinement with less than four years remaining in their sentences.  And now I am wondering what will come of those (still nascent) clemency plans.

In this ACLU press release, ACLU Justice Division Director Udi Ofer explains why clemency is still a concern for the home confinement cohort: 

“We also recognize that the threat of eventual return to prison is still present, so we ask President Biden to use his clemency powers to provide permanent relief to families.  A future administration can still force people back to prison, and families will not have permanent closure until their cases are fully resolved.  So while we celebrate today, we also commit to continuing to advocate for President Biden to use his power of clemency to commute these sentences.”

For all sorts of reasons, a commutation of sentence to time served would surely be preferred by nonviolent drug offenders on home confinement with less than four years left on their sentences as well as by all other persons in the home confinement cohort.  Will the clemency process keep churning in DOJ and the White House for this group now?  Will advocates keep pushing clemency for this group or now turn its attention to those still stuck in federal prison during the on-going pandemic?  And will Prez Biden actually use his clemency power for anyone anytime soon?

December 22, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Japan hangs three persons for "extremely ghastly" crimes, completing first executions in two years

As reported in this CBS News piece, "Japan hanged three death-row inmates on Tuesday, its first executions in two years, amid growing criticism by human rights groups of the country's use of the death penalty."  Here is more about those executed and unique way Japan goes about carrying out death sentences:

One of the three, Yasutaka Fujishiro, was convicted of killing seven people and setting fire to their house in 2004, while the other two, Tomoaki Takanezawa and Mitsunori Onogawa, were convicted in the 2003 killings of two pinball parlor employees.

Executions are carried out in high secrecy in Japan, where prisoners are not informed of their fate until the morning they are hanged.  Since 2007, Japan has begun disclosing the names of those executed and some details of their crimes, but information is still limited.

Justice Minister Yoshihisa Furukawa said at a news conference that the three had committed "extremely ghastly" crimes and the punishment was appropriate.

Furukawa declined to comment on the timing of the executions, often carried out during the year-end holiday season when parliament is in recess, which opponents say is an attempt by the government to reduce criticism.  Japan's parliament had its final session of the year on Tuesday. "As justice minister, I authorized their executions after giving extremely careful considerations again and again," Furukawa said.

Japan now has 107 people on death row at detention centers, instead of regular prisons.  It has maintained the death penalty despite growing international criticism, saying the punishment is needed to take into consideration the victims' feelings and as a deterrence for heinous crime.

Japan and the U.S. are the only two countries in the Group of Seven industrialized nations that use capital punishment. A survey by the Japanese government showed an overwhelming majority of the public supports executions, Furukawa said.

He defended the short notice given to inmates about to be executed, citing a "serious mental impact" on them if they learn their fate way in advance. Two death-row inmates recently filed a lawsuit against the government saying the system causes psychological distress and seeking compensation over mental suffering from living in uncertainty until the last day of their lives....

The executions were the first since Dec. 26, 2019, when a Chinese citizen convicted in the 2003 killing of a family of four in Fukuoka was put to death. He was one of three hanged that year. In 2018, Japan executed 15, including 13 Aum Shinrikyo cult members convicted in a deadly 1995 nerve gas attack on Tokyo's subways.

December 22, 2021 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (2)

More timely new Prison Policy Initiative briefings on the many challenges of incarceration

I am often not able to keep up with all the great "briefings" produced by the folks at Prison Policy Initiative. Last month in this post, I noted a set of important recent work detailing ugly economic realities and disparities intertwined with prison experience. I am pleased now to have a chance to flag three more important and timely new briefings about other incarceration realities:

"Research roundup: The positive impacts of family contact for incarcerated people and their families: The research is clear: visitation, mail, phone, and other forms of contact between incarcerated people and their families have positive impacts for everyone — including better health, reduced recidivism, and improvement in school. Here’s a roundup of over 50 years of empirical study, and a reminder that prisons and jails often pay little more than lip service to the benefits of family contact."

"Since you asked: What information is available about COVID-19 and vaccinations in prison now?: Despite the new variants of COVID-19, prison systems are failing to publish up-to-date and necessary data and we don’t know much about booster shot access."

"Recent studies shed light on what reproductive 'choice' looks like in prisons and jails: States that are otherwise hostile to abortion rights are especially likely to make it difficult for incarcerated people."

December 22, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

December 21, 2021

New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"

Regular readers are familiar with the legal issues surrounding what I have called the "home confinement cohort," those people who had been released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act, but who were at risk of being sent back to prison at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much. But now that group has been given a notable holiday present in the form of a a new OLC 15-page opinion that concludes that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." Here is a key starting and closing paragraph from the new memo:

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon a thorough review of the relevant text, structure, purpose, and legislative history — and a careful consideration of BOP’s analysis of its own authority — we conclude that the better reading of section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.  Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading thatshould be accorded deference in future litigation challenging its interpretation...

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.  Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.  It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement.  BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy.  We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).

I certainly think this new OLC opinion reaches a much better policy outcome, and one that certainly seems consistent with both the goals and the text of the CARES Act.  I will need more time to read and re-read this new OLC effort before reaching a firm conclusion on its legal analysis, but I recall some months ago being moved by this long letter from advocates making the legal case for reconsidering the original OLC opinion.  

interestingly Attorney General Garland issued this statement along with the new OLC memo (with my emphasis added): "Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.  We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”  This statement by AG Garland suggests that DOJ is now going to engage in "rulemaking" that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends.  I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the "home confinement cohort" who may need to worry about eventually heading back to federal prison.

Some of many prior related posts:

December 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

A deep dive into extreme sentences in the Pelican State

61bbccc672eb3.imageThe Marshall Project with the Times-Picayune and The Advocate has a new series of pieces exploring extreme sentences in Louisiana.  Here are headlines, links and a few passages:

"Her Baby Died After Hurricane Katrina. Was It a Crime?: An expansive definition of murder in Louisiana leaves many behind bars forever."

Louisiana sentences people to life without parole at one of the highest rates in the nation, data shows. Nearly 4,200 men and women are serving lifetime sentences in the state, for crimes that range from homicide and rape to rarer cases of repeat purse snatchings and child neglect, an investigation by The Marshall Project and The Times-Picayune | The Advocate found.

Second-degree murder charges, like the ones Woods and Scott were found guilty of, are a big driver of life-without-parole sentences. The state has long had the highest homicide rate in the nation. But Louisiana law contains an unusually sweeping definition of second-degree murder that includes even some accidental deaths, legal experts say. And despite the wide variations in circumstances that can produce a second-degree murder conviction — from a premeditated ambush to a getaway car accident — the sentence is the same: mandatory life without parole. Judges have almost no discretion.

"‘The Only Way We Get Out of There Is in a Pine Box’: Elderly, ailing and expensive, lifetime prisoners cost Louisiana taxpayers millions a year."

Total medical spending for state corrections eclipsed $100 million last year. That’s an increase of about 25% from 2015, according to state budget figures....

Now, one in six people incarcerated in Louisiana has been sentenced to die in state custody. Nearly 1,200 lifers are over 60. Those geriatric lifers make up nearly 5% of the state prison population.

"A life sentence for $20 of weed? Louisiana stands out for its unequal use of repeat offender laws."

The crime that landed Kevin O’Brien Allen a spot among the more than 4,100 Louisianans now serving life-without-parole sentences wasn’t a bloody one: He sold $20 in marijuana to a childhood friend....

Agents booked Allen on two counts of marijuana distribution, and prosecutors in District Attorney Schuyler Marvin’s office made him an offer: a 5-year sentence if he pleaded guilty. Allen, a father of two with a steady job but a handful of drug convictions, balked....

Louisiana law affords prosecutors wide discretion to increase a repeat offender’s sentence, up to life, and Marvin’s office drew on Allen’s past convictions: possession with intent to distribute marijuana in 2004, marijuana possession in 2007 and 2011, and methamphetamine possession in 2013.

Once invoked by a prosecutor, the habitual-offender law gives little leeway to judges. They can sentence a defendant to less time if they find the minimum is so far out of line that it defies “acceptable goals of punishment” or serves as “nothing more than the purposeful imposition of pain and suffering.” But courts have described those scenarios as “exceedingly rare.”...

Allen [received a life sentence and] now works in the prison kitchen, making juice for pennies a day, serving a sentence that ends when he dies. He’s among nearly 300 people serving life without parole in Louisiana prisons based on their status as habitual offenders, an analysis of recent state corrections data show. In 40% of those cases, the incarcerated person is locked up for life on a non-violent crime....

Corrections data show wide variances in how district attorneys around the state have used the habitual offender law. Nearly two-thirds of habitual lifers in the state were sentenced in one of four large parishes: Caddo, Orleans, St. Tammany or Jefferson, according to the data. The practice is somewhat less common in East Baton Rouge Parish, the state’s most populous.

Overall, Louisiana prosecutors have mostly aimed the law at Black defendants, like Allen. Black people make up 31% of Louisiana’s population, but 66% of its state prisoners; 73% of those serving life sentences; and 83% of those serving life as habitual offenders, corrections and census data show.

December 21, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5)

BJS releases "Employment of Persons Released from Federal Prison in 2010"

The Bureau of Justice Statistics has just released this fascinating new accounting of employment dynamics for over 50,000 persons who were released from federal prison in 2010.  Here is how the report starts to explain its scope:

The Bureau of Justice Statistics (BJS) produced this study to fulfill a congressional mandate in the Fair Chance to Compete for Jobs Act, part of the 2019 Defense Reauthorization Act (P.L. 116-92, Title XI, Subtitle B, Section 1124).  Congress tasked BJS and the U.S. Census Bureau with reporting on post-prison employment of persons released from federal prison. The study population in this report includes 51,500 persons released from the Federal Bureau of Prisons (BOP) whose release records could be linked by the U.S. Census Bureau to employment and wage files from the Longitudinal Employer-Household Dynamics (LEHD) program.

I cannot readily summarize all the findings from this report, but here are a few passages I found notable:

More than two-thirds (67%) of the study population released from federal prison in 2010 obtained formal employment at any point during the 16 quarters following release. However, the total study population’s employment did not exceed 40% in any of the individual 16 quarters after release. The highest percentage of persons in the study population who were employed occurred in the first full quarter after prison release for whites (46%) and American Indians and Alaska Natives (37%), in quarter 2 for blacks (37%) and Hispanics (34%), and in quarter 5 for Asians and Native Hawaiians and Other Pacific Islanders (38%). Males who obtained post-prison employment worked for an average of 9.1 quarters during the 16 quarters following release, while females worked an average of 10.2 quarters....

A third (33%) of persons in the study population were employed 12 quarters prior to their admission to federal prison. This percentage declined in each subsequent quarter, with 18% employed in the last full quarter before admission to prison and 11% employed in the quarter of prison admission....

A higher percentage of persons in the study population who served time in federal prison for drug offenses before their 2010 release were employed during the 16 quarters after release (72%) compared to other offense types, while persons who served time for public order offenses had the lowest (60%).  Seventy percent of persons in the study population who returned to federal prison during the time from their 2010 release to yearend 2014 found employment in at least 1 quarter of the follow-up period, compared to 66% of persons who were not reimprisoned by the BOP....

Persons in the study population worked in a wide range of jobs after prison, but five industrial sectors employed the majority of persons released in 2010: administrative support and waste management and remediation services; accommodation and food services; construction; manufacturing; and retail trade (table 7). Together, these sectors employed 72% of persons in the study population who obtained work in the first quarter after their 2010 prison release, declining to 66% in quarter 16. During each of the 16 quarters after release, the top nine employment sectors accounted for more than 85% of the jobs worked by the employed persons in the study population.

Because I do not see this report including any data about education levels or any in-prison vocational training efforts, I am not sure quite what to make of all these particulars. But the particulars are still quite interesting.

December 21, 2021 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

December 20, 2021

Eighth Circuit panel affirms time-served sentence for enticement of a (fake) minor when guidelines recommended 46-57 months

A helpful reader made sure I did not miss this interesting Eighth Circuit panel ruling today in US v. Davis, No. 21-1283 (8th Cir. Dec. 20, 2021) (available here). Here are portions from the opinion's start and heart:

Fredrick M. Davis pled guilty to attempted coercion or enticement of a minor in violation of 18 U.S.C. § 2422(a).  The district court sentenced him to time served and 120 months’ supervised release, including one year of home confinement. The United States appeals the below-guidelines sentence....

In 2019 Davis contacted “Addyson” and “Sara” online.  They identified themselves as 14-year-old girls, but were actually personas of undercover law enforcement. Davis asked them to meet with him in a hotel in Dickinson, North Dakota.  He sent them sexually explicit messages and a graphic picture, and asked them to send him explicit pictures.

Davis was arrested at the North Dakota hotel where he intended to meet the girls. Under a pretrial agreement, Davis pled guilty to one charge—attempted coercion or enticement of a minor. His advisory guideline range was 46-57 months.  As required by the pretrial agreement, the parties jointly recommended a 60-month sentence and five years of supervised release.  The district court sentenced Davis to time served (two months) and 120 months of supervised release, including one year of home confinement, participation in sex offender treatment, and registration as a sex offender....

The government objected to the sentence for failing to afford adequate deterrent effect (the district court noted the objection).  But a district court has “wide latitude” to weigh factors, and it “may give some factors less weight than a [party] prefers or more weight to other factors, but that alone does not justify reversal.”  United States v. Brown, 992 F.3d 665, 673–74 (8th Cir. 2021).  In its written statement of reasons, the district court did acknowledge the need to afford adequate deterrence to criminal conduct. It chose to give other factors more weight than the deterrence factor, which is not a clear error of judgment.

The government also argues that the district court erred in weighing the Post Conviction Risk Assessment.  The record shows the district court considered the PCRA in conjunction with other factors.  In fact, at sentencing, the court asked the prosecutor: “do you agree with the assessment in the PSR that the risk level is very low for this offender to reoffend?”  He replied, “I do agree, yes, Your Honor.”  It is within the district court’s discretion to weigh such factors.

The government contends Davis’s commendable 20-year military career and his exemplary behavior on pretrial release are not “sufficiently compelling” to justify his below-guidelines sentence.  See Gall, 552 U.S. at 50.  But, this court “may not require ‘“extraordinary” circumstances to justify a sentence outside the Guidelines.’” Feemster, 572 F.3d at 462, quoting Gall, 552 U.S. at 47.  The district court’s rationale for granting the variance does not need to be extraordinary, only substantively reasonable.

18 U.S.C. § 3553(a)(1) instructs the sentencer to consider a defendant’s history and characteristics.  In his meritorious military career — half his adult life — he earned numerous awards and commendations, including the Combat Action Ribbon and recognitions for service in Iraq and Somalia.  Cf. U.S.S.G. § 5H1.11 (“Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.”).  He also did more than simply staying out of trouble while on pretrial release: he acknowledged his conduct, expressed remorse, sought ongoing treatment for his service-related PTSD, and got and maintained a job....

The ten years of supervised release, one year of home confinement, and other restrictions here are a substantial punishment.  “[T]he Guidelines are only one of the factors to consider when imposing a sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment.” Gall, 552 U.S. at 59.  “[C]ustodial sentences are qualitatively more severe than probationary sentences of equivalent terms,” but “[o]ffenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty.” Id. at 48.  In Gall itself, the Court reversed for not giving due deference to the district court’s “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence” of probation. Id. at 59-60. 

December 20, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

ACLU releases new poll showing broad support for clemency for home confinement cohort

This new press release reports that "the American Civil Liberties Union released a poll today showing broad bipartisan support for President Joe Biden to issue clemency to those who were selected to be transferred home under the CARES Act."  Here are more details from the press release:

During the pandemic, thousands of people have been released from prison to finish their sentences on home confinement, many of whom are elderly or especially vulnerable to COVID-19.  Now, thousands are at risk of being sent back to prison when the pandemic recedes if President Biden does not take action.  Sending all of these people back to federal prison would be the single largest act of incarceration in U.S. history....

Among the poll’s findings:

  • 63 percent of voters nationally support clemency for those who are serving their sentences at home due to COVID-19;
  • Among voters in swing House districts, 70 percent of voters support allowing those who were transferred home to serve the reminder of their sentences at home to help prevent the spread of COVID-19;
  • 68 percent of voters nationwide and 58 percent of voters in swing House districts agree that it’s not fair to return people to prison after they have been successfully released to their families and communities and re-entered society;
  • 53 percent of Republican voters agree that it’s unfair to release people back to their families and communities and then return them to prison;
  • 64 percent of voters nationwide — including 84 percent of Democrats — support using the president’s power of clemency to end or shorten prison sentences of people deemed safe for release; and
  • While only 38 percent of independents approve of Biden’s job as president, a majority of them (57 percent) say they would support the president using clemency.

I am a bit surprised that these numbers are not stronger, though it is unclear from the ACLU "fact sheet" just how the poll questions were presented and how much the average poll participant fully knows or understands about all those in the "CARES home confinement cohort."   In fact, I still have not seen a lot of detailed data on just how many persons are still serving time on home confinement whose sentences goes beyond 2022 and would be at risk of a return to prison if the pandemic (miraculously) ends in the next few months.  I have also not seen much information about the sentences still to serve, the offenses of conviction and other details regarding exactly who would benefit from mass clemency om behalf of the home confinement cohort.  Though these details likely would not undermine my general support for bringing relief to this low-risk group, they might shape my view of whether everyone ought to have their sentences commuted to time served or if some perhaps ought to be receive some other form of relief in some cases.

Given that we are now into the final holiday weeks of the year, I am now getting close to giving up any hope that  that Prez Biden will grant even a single clemency in 2021.  (Of course, holiday season clemencies late into December are not uncommon.  Four years ago today, for example, Prez Trump granted a commutation to Sholom Rubashkin.)  And, of course, the omicron surge of the COVID pandemic now suggests that we are clearly many months away, and perhaps even years away, from a return to normal BOP operations when the CARES home confinement cohort would be at risk of a return to prison.  All these realities lead me to think we will be discussing these issues (and doing more polling?) well into 2022.

Some of many prior related posts:

December 20, 2021 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Despite lacking a quorum, US Sentencing Commission still has an interesting and productive year

Regular readers are likely tired of hearing me complain about the US Sentencing Commission being crippled by a lack of Commissioners, but I hope some have noted my eagerness to compliment the "short-staffed" USSC for all the data and reports produced and promulgated through 2021.  This morning I received an email from the Commission providing a "year in review," and I was struck again at what the Commission has achieved this past year even absent a quorum.  I cannot find this email in a web form, so I will here just reproduce some highlights (with links from the USSC and to the USSC website):

1. Preliminary FY21 data reveal a continued decline in sentencings and a historic shift in the makeup of the federal drug caseload. Learn more ...
2. With the advent of COVID-19, tens of thousands of offenders sought compassionate release. The Commission tracked and reported this data throughout 2021. Learn more

In early 2022, look for a comprehensive new research report on compassionate release providing even greater analysis regarding the courts’ reasoning for granting or denying motions for compassionate release....

6. The Commission expanded its catalog of interactive tools designed for those working in the federal criminal justice system.
IDA Expansion: Interactive Data Analyzer feedback has been very positive and users continue to #AskIDA for even more data. The Commission has listened to your feedback. IDA is now updated with enhanced filtering capabilities—including a brand new data filter for career offenders. Learn more

JSIN Development: The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind. The platform provides quick and easy online access to average prison length and other sentencing data for similarly-situated defendants. Learn more

December 20, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

December 19, 2021

Vera Institute updates its Incarceration Trends website

As discussed in this press release, titled "Vera Institute of Justice Unveils Updated Incarceration Trends Website," the Vera Institute has updated this cool website. Here are the basics as described in the press release:

The Vera Institute of Justice [has] a new, updated version of its Incarceration Trends website, which now includes analysis of more than five decades of local jail and state prison data at the national, state, and county levels.  The updated site brings many of the data points current to spring 2021 and represents the most comprehensive look to date at the growth of mass incarceration across states, counties, and urban-to-rural geographies....

The nation’s biggest cities once had the highest rates of incarceration, but over the past several decades, jail incarceration and state prison admissions have declined in major metro areas as they rose precipitously in smaller cities and rural communities.  Today in the United States, approximately two out of three people in local jails have not been convicted of a crime — many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those who can’t pay child support or fines and fees.  The updated analysis presented in Incarceration Trends highlights that the disproportionate criminalization and incarceration of Black people and other people of color is also most pronounced in rural counties, as is the rise of women’s incarceration.

The newly visualized data also features the rebound in jail incarceration after an unprecedented 14 percent drop in incarceration in the first half of 2020 (bringing the total incarcerated population from 2.1 million to 1.8 million people) in response to the spread of COVID-19.  As of spring 2021, state prison decarceration had stalled and jail populations continued to trend upward.

Incarceration Trends offers insight on national-, state-, and county-level pages, enabling users to compare county-level data to state and national trends.  The website includes:

  • analysis of the race, ethnicity, and gender of people in the nation’s jails and prisons;

  • visualizations of state incarceration trends across major metros, smaller cities, suburbs, and rural communities;

  • rankings of all of the counties in a given state by the incarceration rate and growth of incarceration;

  • a visualization of each county’s jail population, representing the most recently available data about what proportion is held pretrial, sentenced, and held on behalf of other authorities, including state departments of corrections and federal agencies;

  • the ability to toggle between the average number of people held in a jail on any day and the rate of incarceration, accounting for resident population changes; and

  • data on regional jail systems that serve multiple counties.

The new Incarceration Trends website shows both the significant increase in jail incarceration across the urban to rural spectrum since 1970 and the more recent divergence in incarceration trends, including during the COVID-19 pandemic. Nationally, the rate at which people are incarcerated in local jails declined 26 percent between late 2019 and mid-2020. However, jail incarceration had rebounded sharply by spring 2021.

December 19, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)