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February 13, 2021

"Bargained Justice: The Rise of False Testimony for False Pleas"

The title of this post is the title of this new article available via SSRN and authored by Andrew Pardieck, Vanessa Edkins and Lucian Dervan. Here is its abstract:

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent.  The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain.  Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves.

This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems.  It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain.  The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining's innocence problem.

February 13, 2021 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (2)

Notable reviews of extreme sentences in Pennsylvania

The tail end of this week brought a number of notable stories about notably extreme sentences (and a few releases therefrom) in Pennsylvania.  I will use headlines and links to cover a lot of ground involving a number of intersecting and overlapping stories:

"Report raises questions with second-degree murder sentencing in Pennsylvania"

"Pa.’s second-degree murder charge is outdated, unfair, Fetterman says"

"‘They don’t deserve to die in prison’: Gov. Wolf grants clemency to 13 lifers"

"The nation’s oldest juvenile lifer, Joe Ligon, left a Pa. prison after 68 years"

The first pair of stories relate to this notable new report by the Philadelphia Lawyers for Social Equity titled "Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Sentencing."

February 13, 2021 in Clemency and Pardons, Data on sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

February 12, 2021

"Direct Collateral Review"

The title of this post is the title of this notable new Columbia Law Review piece authored by Z. Payvand Ahdout (hat tip: How Appealing). Here is is abstract:

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings.  But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal.  Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts.  And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final.  This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption.  This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

February 12, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Litigation over clergy halts Alabama execution (and divides Justices in notable ways)

Though the federal government carried out the first three execution of 2021 last month, the first state execution in the US was scheduled to take place last night in Alabama.  But, as this local article explains, today "Willie B. Smith III remains alive on death row in Alabama, after the U.S. Supreme Court upheld a ruling that required Smith’s spiritual advisor to be in the execution chamber with Smith when he was given the lethal injection."  Here is more:

The ruling came down around 11:08 p.m. Thursday night, with the Alabama Department of Corrections calling off the execution one minute later.

In the concurring ruling, Justice Elena Kagan said that the law “guarantees Smith the right to practice his faith free from unnecessary interference”. “The Eleventh Circuit was right to bar Alabama from executing Smith without his pastor by his side,” Kagan said. “Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.”

Kagan along with Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Amy Coney Barrett all denied the Alabama Attorney General’s Office’s motion to overturn a lower court ruling requiring Smith’s spiritual advisor to be in the execution chamber. Justice Brett Kavanaugh along with Justice John Roberts, wrote the dissenting opinion.

Smith’s other claim as to why the execution should be called off centered on what his lawyers called an intellectual disability.  While the 11th Circuit Court of Appeals granted a stay based on that claim Wednesday night, the U.S. Supreme Court lifted that stay around 11 p.m. Thursday.

Smith, 51, was originally set to die by lethal injection at 6 p.m. inside of William C. Holman Correctional Facility in Atmore....  Smith was sentenced to death in 1992 for the Oct. 1991 abduction, robbery and murder of Sharma Ruth Johnson. Johnson’s body was found in the trunk of her burned car with a shotgun wound to her head, after being shot execution style at a east Birmingham cemetery. 

The full SCOTUS discussion of these issues is available at this link, but the opinions released by the justices are just concurrences and dissents from the denial of Alabama's application to lift the stay put in place by the Eleventh Circuit.  As Amy Howe explains in this SCOTUSblog post, the exact votes here are unclear even though it is clear that this issue has divided the more conservative block of Justices:

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber.  Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy.  The remaining two justices — Justices Samuel Alito and Neil Gorsuch — did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

This NPR piece about the ruling provides some context for how SCOTUS has struggled with execution clergy issues in recent years:

The Supreme Court justices have grappled with the same legal question at the core of the Smith case in the last two years, but have ruled very differently in each situation.  In 2019, the Supreme Court, by a 5-4 vote, ruled that Alabama could execute Domineque Hakim Ray, a Muslim man convicted of murder.

The appellate court had temporarily blocked the execution because the state barred the man from having a Muslim imam at his side in the death chamber. Alabama said only the prison's Christian minister would be allowed in.

A month later, in a 7-2 vote, the justices granted an eleventh-hour stay of execution to Patrick Henry Murphy, a Buddhist prisoner in Texas who had been denied a Buddhist religious adviser at his side in the death chamber.  The difference between the two cases, according to the conservative court majority, was that the Muslim prisoner waited too long to ask for an imam.

It's unclear what the state of Alabama's next move will be in the Smith case.

That both Justices Alito and Gorsuch remained silent and yet may have voted for the stay here is fascinating; these two have long seemed, by virtue of their votes and opinions, to be the two Justices most eager to ensure condemned inmates fail in any and all efforts to block or delay scheduled executions.  In addition, I believe this case may represent the very first time in which, in a closely divided vote, Justice Barrett joined an opinion of her more liberal colleagues.  Justice Barrett could have, of course, opted for the "silence is golden" approach adopted by Justices Alito and Gorsuch; that she notably decided instead to sign on to Justice Kagan's concurrence is quite noteworthy.

February 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Reminder of next week's "Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

OSJCL-Symposium_College-graphic-768x509I flagged a few weeks ago this great symposium taking place (on Zoom) next Friday, February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event. Registration for this event is now available at this link, and here is how the event is described and organized:

The Ohio State Journal of Criminal Law, in collaboration with the Drug Enforcement and Policy Center, is pleased to announce our live symposium for Spring 2021, “Prosecutorial Elections: The New Frontline in Criminal Justice Reform.”  This virtual series is aimed at provoking thoughtful and well-rounded discussion surrounding the responsibility of the modern prosecutor in ushering in criminal justice reform and how that responsibility intersects with their role to uphold the law.  The panelists, including both academics and practitioners, will explore these questions from a variety of perspectives.  A schedule for the symposium can be found below.

Schedule:

10:15 a.m.-10:30 a.m.: Opening Remarks and Introduction

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

12:00 p.m.-1:30 p.m.Lunch break

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

3:30 p.m.-5:00 p.m.:Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

5:00 p.m.: Closing remarks

A list of the speakers and their biographies can be found here.

February 12, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

February 11, 2021

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"

As detailed in this post from last June, US Senators Dick Durbin and Chuck Grassley responded to the ugly realities of the COVID pandemic and its impact on incarcerated persons by introducing a modest, but still important, new bill to reform the procedures surrounding federal elderly home release and compassionate release.  Disappointingly, that bill never moved forward in the last Congress, but this press release reports that it is back on the docket for the new Congress.  Here are excerpts from the release:

Amid the COVID-19 public health pandemic, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons.  Sadly, more than 200 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs.  

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  Since March of last year, BOP has opposed nearly all compassionate release requests, while courts have granted more than 2,000 over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus, which we know thrives in places like prisons.  I’m hopeful that we can take up legislation on a bipartisan basis so we can start to properly implement the First Step Act and protect communities from further COVID-19 outbreaks,” said Durbin.

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); 
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

Joining Durbin and Grassley in cosponsoring the legislation are Senators Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Kevin Cramer (R-ND), Chris Coons (D-DE), Roger Wicker (R-MS), and Cory Booker (D-NJ). 

As the release reveals, Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward. But, of course, Congress moves in mysterious ways, and I have learned never to expect too much from inside the Beltway.

February 11, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

How about some clemency grants from Prez Biden while his team works on grander clemency plans?

I am very pleased to see this lengthy new Politico piece shining a light on federal clemency under this full headline: "Trump left behind a clemency mess.  The clock’s ticking for Biden to solve it. Lawyers and criminal justice advocates are pushing Biden to act swiftly.  But Covid and the economy are pushing action back."  I recommend the whole piece, and here are excerpts:

Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations.  Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well.  Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.

But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog.  Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.  “They couldn’t have had time to formulate a plan,” the person said.

More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away.  One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice.  Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union's Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues....

“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”

The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.

In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further. In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.

In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden. But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.

Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.

But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources. “In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”...

Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.

“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. ... It takes courage to do it this year.  We are ready for this.  It’s time. It’s past time.”

Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.

The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases.  The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.

Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden. “There are ... more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances ... and destroying lives and families. It’s a total loser, but we do it.”

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that "It’s time. It’s past time."  I also share Mark Osler's view that this could have and should have been a transition priority for the Biden team.  Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a "comprehensive plan" for effective clemency reform.  But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

I am certain that there must be many dozens, and probably many hundreds, of cases that ought to be federal clemency "no-brainers."  (For example, women and men on the CAN-DO site or the lifer marijuana offenders assembled at Life for Pot or person highlighted by NACDL’s Trial Penalty Clemency Project.)  I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants to be part of Prez Biden's 100-day agenda and legacy.  As Senator Cohen highlights, every day of delay is another day "wasting their lives, wasting the federal government’s finances, and destroying lives and families."

A few of many recent related posts:

February 11, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thoughtful accounting of the dynamic world of prosecutorial discretion

Marc Levin has this notable new Law360 commentary headlined "DOJ Charging Memo Rescission Aids Prosecutorial Discretion."  The piece covers a lot more than just the new interim DOJ charging memo (discussed here), and I recommend the entire discussion in full.  Here are excerpts:

[W]hile prosecutors have always declined cases, recently elected prosecutors in urban and even some suburban jurisdictions face backlash for presumptively declining to pursue certain categories of cases, such as low-level drug possession and trespassing on public property.

Of course, exercising discretion on which charges to bring in a particular case is not the same as designating categories of cases in which the default policy will be nonprosecution.  Critics charge that the latter displaces the role of legislative bodies in criminalizing conduct.

However, even policies that presumptively decline prosecution for certain offenses can be consistent with the rule of law, provided they operate within constraints that ensure accountability, individualized review and transparency....

In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of.  Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.

Default nonprosecution policies, even if implicit rather than announced, are routinely applied to such antiquated statutes, but also are required by the dramatic growth of criminal law in recent decades.  As a result, countless obscure crimes are largely unknown and unprosecuted.  Many are regulatory offenses affecting business and recreational activities, such as federal laws criminalizing ketchup that isn't thick enough, bringing too many nickels when traveling overseas or writing a check for less than $1.  Like trespassing on public property or drug possession, these obscure offenses often lack an identifiable victim.

A last-minute executive order by former President Donald Trump rightfully urges that civil, rather than criminal, penalties be pursued for unknowing violations of regulations....

This executive order also encourages prosecutors not to bring charges for such crimes if the prospective defendant did not have a culpable mental state, even though it is not required by the law or regulation.  While laudable, this is not fundamentally different than presumptively declining to prosecute an offense altogether, since it effectively restricts the scope of an offense that, as written, creates strict criminal liability.

If prosecutors indeed have the rightful authority to decline pursuing these categories of obscure offenses, then local district attorneys can presumptively not prosecute drug possession or public trespassing.  The ubiquity of the latter is simply not a meaningful philosophical distinction.

Some would argue another difference is that those who tend to be subject to drug and trespassing laws are much less powerful.  Others would point to the neighborhood quality-oflife concerns as a distinguishing factor, but that goes to the question of whether prosecution or other strategies are most effective, not the legitimacy of prosecutorial declinations.

Prosecutors must decide not just whether laws have been violated, but whether prosecution is in the public interest, taking into account the trade-off in pursuing other cases and whether prosecution would be more likely than other approaches to advance goals such as public safety and public confidence in the justice system.

In military terms, lawmakers give prosecutors ammunition, but prosecutors decide not only when to shoot but which battles should be fought.

A few recent related posts:

February 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

February 10, 2021

"The Sixth Amendment Sentencing Right and Its Remedy"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and now available via SSRN.  Here is its abstract:

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences.  The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right.  The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis.  Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice.  What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment — the liberty interests of criminal defendants and democratic input into individual criminal cases.  Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

February 10, 2021 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Mid-week and mid-winter perspectives on lots of hot criminal justice reform stories

February has been cold and snowy in Ohio, but there are still lots of hot criminal justice reform stories cooking in the middle of winter all over the USA.  So, mid-week and mid-winter, here is a round-up of just some of the reform stories and commentaries catching my eye:

From The Appeal, "Trump Turned The Justice System Into a Black Box.  Biden Could Fix It."

From Bloomberg Law, "Law Firms and Nonprofits Must Work Together for Criminal Justice Reform"

From The Marshall Project, "What 120 Executions Tell Us About Criminal Justice in America"

From The Nation, "How Progressive District Attorneys Are Leading the Charge to Fix Our Broken Justice System"

From Newsweek, "The Biden Administration Can Act on Criminal Justice Reform Now"

From Real Clear Policy, "Washington Must Atone for its Legacy of Mass Incarceration"

From Reason.com, "Civil Commitment of Sex Offenders Pretends Prisoners Are Patients"

From Time, "Why It's So Significant That Virginia Looks Set To Abolish the Death Penalty"

February 10, 2021 in Recommended reading | Permalink | Comments (1)

State court limits new LA County DA's new directives limiting use of sentencing enhancements

I have noted in prior posts linked below the various reform efforts of new Los Angeles County District Attorney George Gascón and the push back these efforts have reeived from other prosecutors.  This week, these issues resuted in a notable state court ruling, and detailed in this Los Angeles Times article headlined "Several of D.A. George Gascón’s reforms blocked by L.A. County judge."  Here are excerpts:

Los Angeles County Dist. Atty. George Gascón was barred from implementing a significant part of his sprawling criminal justice reform platform Monday, after a judge ruled his plan to end the use of sentencing enhancements in thousands of criminal cases violates California law.

The order stemmed from a lawsuit filed late last year by the union that represents hundreds of L.A. County prosecutors, alleging some of Gascón’s plans exceeded his legal authority and put line prosecutors in an ethical bind.  Sentencing enhancements can add several years to a defendant’s time in prison if certain criteria are met, such as using a gun causing severe injury during the commission of a crime, or being a documented gang member.

The lawsuit took particular issue with Gascón’s policy of barring the use of sentencing enhancements for prior felony convictions, arguing that under California’s “three strikes” law, prosecutors do not have discretion “to refuse to seek the enhancement.”

In his ruling, Judge James Chalfant noted that the “three strikes” law requires prosecutors to “plead and prove” all prior serious or violent felony offenses.  He found Gascón’s directive ordering prosecutors not to file such enhancements unlawful, and cited several appellate cases that upheld the argument that strike offenses must be charged under state law.

“A district attorney’s discretion is not unlimited. He or she must work within the framework of the criminal system,” Chalfant wrote.  “The legislature also is entitled to enact laws intruding on the executive or judicial branches of government so long as they do not defeat or materially impair that branch’s core function.”

In a 46-page ruling, Chalfant also barred Gascón from ordering prosecutors to dismiss any sentencing enhancements in active cases, unless they can argue that there is insufficient evidence to prove the enhancement or that the dismissal would be in the interest of justice.

Since Gascón took office, many prosecutors have appeared in court and read a statement — which some derisively refer to as “the script” — acknowledging they were seeking to dismiss enhancements under Gascón’s order because they believed the underlying penalties for the crime in question were “sufficient to protect public safety and serve justice.”

Judges had already been blocking such motions to dismiss on those grounds, but Chalfant’s ruling also stopped Gascón from ordering prosecutors to read the statement, finding the remarks themselves are “inaccurate and incomplete” and would require prosecutors to commit an ethical violation by making an inaccurate representation to the court.

The ruling affects a significant number of cases in L.A. County, where there are 10,794 defendants currently facing charges with sentencing enhancements, according to statistics provided to The Times in response to a public records request.  Gascón can still bar prosecutors from filing most sentencing enhancements in new cases, though enhancements for prior strike offenses must still be charged, according to the order....

Gascón said he will appeal Chalfant’s ruling, which he acknowledged as an expected hurdle in his broader mission to reimagine criminal justice in Southern California. “More than 2 million people in Los Angeles County voted for a system of justice based on science and data, not fear and emotion.  Nevertheless, I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism,” he said in a statement.  “My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety.”

In a reply filed in January to the union’s suit, lawyers for L.A. County argued that prosecutors have broad discretion over whether to file strike enhancements and contended that if a judge granted the union’s petition, it would be an unprecedented overreach from the bench.  “The Union asks for something no California court has ever ordered, as no California court has ever deemed itself to have the power to require ... a district attorney to plead any particular criminal charge or sentencing enhancement,” the reply read. “To the contrary, courts have long held that such charging power is almost entirely unreviewable and is uniquely within the district attorney’s discretion.”

The day he took office, Gascón announced an array of sweeping changes that included putting an end to the use of enhancements, severely restricted when prosecutors can seek to hold defendants in lieu of bail, ended the use of the death penalty in L.A. County and stopped the practice of trying juveniles as adults.  The seismic policy shifts have drawn Gascón praise from other progressive prosecutors and criminal justice reformers nationwide, but left him at odds with his own staff and many of the local law enforcement officials he must work with to try cases.

The union lawsuit was being watched closely by law enforcement officials around the state and highlighted a broader divide between traditionalist and reform-minded prosecutors that has seemingly grown wider in recent weeks.  San Francisco Dist. Atty. Chesa Boudin and Contra Costa County Dist. Atty. Diane Becton filed briefs in support of Gascón, worrying that a ruling like the one issued Monday would have a “chilling effect” on the authority of elected prosecutors to enact reforms.

The full opinion is available at this link, and the coming appeals should be interesting to watch.

Prior recent related posts:

February 10, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Evading the Eighth Amendment: Prison Conditions and the Courts"

The title of this post is the title of this book chapter authored by Sharon Dolovich now available va SSRN.  Here is its abstract:

The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly.  This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody.  It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values.  The effect was to leave the people in prison without judicial protection from needless pain and suffering.  And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern.

February 10, 2021 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

February 9, 2021

"U.S. Attorney Transition Begins" ... and ... "The Justice Department Is Way Too White"

The title of this post is drawn from two recent headlines.  The first part comes from this new Justice Department press release, which states the following:

Continuing the practice of new administrations, President Biden and the Department of Justice have begun the transition process for the U.S. Attorneys.

“We are committed to ensuring a seamless transition. Until U.S. Attorney nominees are confirmed, the interim and acting leaders in the U.S. Attorneys’ Offices will make sure that the department continues to accomplish its critical law enforcement mission, vigorously defend the rule of law and pursue the fair and impartial administration of justice for all,” said Acting Attorney General Wilkinson.

Earlier this year, nearly all presidential appointees from the previous administration offered their resignations, though U.S. Attorneys and U.S. Marshals were asked to temporarily remain in place. Prior to the beginning of this U.S. Attorney transition process, approximately one-third of the U.S. Attorneys’ Offices were already led by acting or interim leadership.

President Biden will make announcements regarding his nominations to the Senate of new U.S. Attorneys as that information becomes available.

The second part is the title of this new and notable New Republic commentary authored by Ankush Khardori, which includes these passages (with some links from original retained):

One outstanding question that is likely to figure prominently in how progressives evaluate Biden’s eventual nominees is whether, and to what extent, the administration will try to address the unfortunate lack of racial diversity within the department, particularly in those top prosecutor positions.  This is a long-standing problem that got strikingly worse under Donald Trump.  Biden’s nominations of Lisa Monaco, Vanita Gupta, and Kristen Clarke for senior positions in the department have been a positive sign — that trio not only brings variety across lines of race and gender, they also happen to be as well-qualified a group as any you could assemble — but it remains to be seen how much progress the administration will make beyond these first big moves.

The lack of racial diversity among federal prosecutors is a significant problem, one that’s reflected throughout every segment of the legal profession.  It has shown little sign of abating.  A recent study once again confirmed the truly dismal state of affairs in the private sector: About 92 percent of law firm partners are white, just 2 percent are Black, and pretty much no one in a position of power seems to care.  President Biden has the opportunity to reverse these trends, which would not just benefit the lawyers who are currently struggling to advance in their careers — it would significantly improve the world for the Justice Department’s legal clients: the American people....

Last year, BuzzFeed’s Zoe Tillman found that just seven of the 93 U.S. attorneys at the time were nonwhite.  These problems weren’t as pronounced in the top ranks during the Obama administration, but the broad lack of diversity nevertheless persisted at every level even then.  In 2015, for instance, Stanford Law School released a study that found that just 13 percent of all assistant U.S. attorneys were Black or Latino....  [T]here are significant public policy implications that flow from the imperative to improve diversity at the department, including among the U.S. attorneys throughout the country.  These are really federally appointed local prosecutors — among the most prominent and consequential political and legal figures in their communities.  It is vital to have people in these positions who represent the diversity of our country and their communities, and who can tailor and calibrate their local enforcement priorities accordingly....

Biden’s first big hires suggest that he understands that there is value to diversity in the Justice Department’s ranks, but this is not simply a matter of optics.  The stakes here — and the potential for significant forward progress in the federal law enforcement apparatus — are very real.  For an administration that seems to want to aggressively address the many serious problems left and exacerbated by the Trump administration, empowering a new group of U.S. attorneys who look like and can relate to the communities that they’ll be serving will not just mark a sharp start to a new era, it will provide the foundation for a more durable and just future. 

February 9, 2021 in Who Sentences | Permalink | Comments (2)

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

  1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
  2.  Require that short prison sentences be served in county jails. 
  3.  End mandatory minimum sentences for nonviolent offenses.
  4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
  5.  Provide guidance for judges considering sentence enhancements.
  6.  Limit gang enhancements to the most dangerous offenses.
  7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
  8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
  9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
  10.  Establish judicial process for “second look” resentencing.

February 9, 2021 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Coalition of civil rights groups calls on Prez Biden to commute all federal death sentences and halt capital activity

As reported in this AP piece, "civil rights and advocacy organizations are calling on the Biden administration to immediately halt federal executions after an unprecedented run of capital punishment under President Donald Trump and to commute the sentences of inmates on federal death row."  Here is more (with links from the original):

The organizations, including the American Civil Liberties Union, The Leadership Conference on Civil and Human Rights and 80 others, sent a letter to President Joe Biden on Tuesday morning, urging that he act immediately “on your promise of ensuring equality, equity, and justice in our criminal legal system.”

Biden has been systematically undoing many Trump administration policies on climate, immigration and ethics rules. Although he is against the death penalty and has said he will work to end its use, Biden has not commented on what he will do with Trump’s unprecedented push for the federal death penalty.  The Bureau of Prisons carried out more executions under Trump, 13, than any previous president....  The groups say Biden should step in immediately and take action, as his administration works to establish priorities, address systemic racism and overhaul parts of the criminal justice system.

In the letter, the civil rights groups said the use of the death penalty “continues to perpetuate patterns of racial and economic oppression endemic to the American criminal legal system.”...  “Any criminal legal system truly dedicated to the pursuit of justice should recognize the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” the letter said....

The groups told Biden he has the power to dismantle the death chamber building at the Federal Correctional Complex in Terre Haute, Indiana — the small building where the 13 executions were carried out in six months — in addition to rescinding the Justice Department’s execution protocols and a regulation that no longer required federal death sentences to be carried out by lethal injection and cleared the way to use other methods like firing squads and poison gas.

They also said Biden could prohibit prosecutors from seeking death sentences and commute the sentences of the several dozen inmates on federal death row.  Far-reaching steps by Biden, the letter said, would also preclude any future president from restarting federal executions.  Trump’s predecessor, Barack Obama, halted federal executions but never cleared death row or sought to strike the death penalty from U.S. statutes.  That left the door open for Trump to resume them.  “We … recognize that if there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” it said.

Cynthia Roseberry, the ACLU’s deputy director of policy for the justice division, said she knows that Biden has a lot on his plate and that he should be given some time to act on the death penalty.  But she said the groups wanted to assure Biden “that there is broad based support to be bold” on the issue and that some don’t require complicated policy initiatives or new legislation.  “These things,” Roseberry said, “can be accomplished with the stroke of the pen.”

The full ACLU press release about this letter is available at this link, and the full letter from the coaltion is available at this link.   

I noted here in response to last month's similar letter by 37 Democratic members of Congress that the call for commuting all of federal death row came with a request to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  This new call here to "immediately commuting the sentences of all individuals under federal sentence of death" does not alternative sentencing with any specificity, but it obviously avoids advocating that Prez Biden converting death sentences into life without parole sentences.  This is yet another reminder that modern adocacy against LWOP sentences, which often calls LWOP just a death sentence by another name, serves to complicate a bit advocacy against capital punishment.

February 9, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

February 8, 2021

CCRC releases a "Reintegration Agenda for the 117th Congress"

The Collateral Consequences Resource Center has this notable new report titled "A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment." Here is its introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020.  However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid.
  • Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution.

February 8, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Who Punishes More? Partisanship, Punitive Policies, and the Puzzle of Democratic Governors"

The title of this post is the title of this notable new research published in Political Research Quarterly authored by Anna Gunderson. Here is its abstract:

The growth of the carceral state over the last few decades has been remarkable, with millions of Americans in prison, jail, on parole or probation.  Political science explanations of this phenomenon identify partisanship as a key explanatory variable in the adoption of punitive policies; by this theory, Republicans are the driving force behind growing incarceration.  This article argues this explanation is incomplete and instead emphasizes the bipartisan coalition that constructed the carceral state.  I argue Democratic governors are incentivized to pursue more punitive policies to compete with Republicans when those Democrats are electorally vulnerable.  I test this proposition using a series of regression discontinuity designs and find causal evidence for Democrats’ complicity in the expansion of the carceral state. Democratic governors who barely win their elections outspend and outincarcerate their Republican counterparts. This article highlights Democrats’ role as key architects in the creation of vast criminal justice institutions in the states when those Democrats are electorally vulnerable.

February 8, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

US House subcommittee to hold hearing on means to "Prevent Abuse of the Clemency Power"

The planned start of former Prez Trump's second impeachment trial in the US Senate is sure to be getting all the attention on Capitol Hill tomorrow.  But this webpage notes that there will be an interesting hearing for clemency fans taking place the morning of February 9, 2021 in the the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives' Judiciary Committee. The hearing it titled "Constitutional Means to Prevent Abuse of the Clemency Power," and this webpage lists these scheduled witnesses:

Ms. Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown University Law Center

Ms. Karen Hobert Flynn, President, Common Cause

Mr. Josh Blackman, Professor of Law, South Texas College of Law Houston

Mr. Timothy Naftali, Clinical Associate Professor of Public Service, New York University

February 8, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Restoring the Historical Rule of Lenity as a Canon"

The title of this post is the title of this new article recently posted to SSRN and authored by Shon Hopwood. Here is its abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation.  Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant.  But the rule is not always reliably used, and questions remain about its application.  In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule.  The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes.  As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts.  If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

February 8, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

February 7, 2021

Reviewing notable criminal justice reform developments in (red) Ohio

I have long talked up criminal justice developments in Ohio because the state has long been a considered a bellwether for national developments.  But thanks to gerrymandering of state legislative district and other recent developments, Ohio is perhaps now more properly viewed as a red state.  Stiil, the political reality that Ohio's General Assembly is now GOP-heavy arguably make recent progessive criminal justice reforms in the Buckeye state even more noteworthy.  This new local article, headlined "Ohio makes big leaps forward on criminal justice changes," effectively reports on recent significant legislative action in this area, and here are excerpts:

Advocates for criminal justice reforms scored multiple wins in the closing weeks of 2020 that they say will give thousands of Ohioans a second chance.  Gov. Mike DeWine signed half a dozen bills into laws that will take effect later this year. The potential impacts are sweeping.

Incarcerated pregnant women will no longer be shackled to hospital beds as they deliver their babies.  Poor people will be able to perform community service as a way to get their driver’s licenses back instead of paying huge fees.  Ohioans who made mistakes will have an easier time getting professional licenses to advance their careers.  People suffering from serious mental illnesses at the time of the crime will not be executed. Teens who commit terrible crimes will serve their time but will still have the hope of making parole someday. 

And House Bill 1 will allow Ohioans in the throes of addiction to get drug treatment instead of a criminal record.  DeWine called House Bill 1 the most significant among the recent criminal justice reforms.  “There is a broad consensus in this country that people who commit crimes — non-violent offenses — because of the fact that they’re an addict, we all want to see them succeed.  We want them to get clean, stay clean and be good members of society,” said DeWine, a former Greene County prosecutor and state attorney general.  “There is a broad consensus that if they can get clean and on a pathway, we don’t want to tag them with a felony conviction. So this makes sense.”...

Support for HB1 came from the right and left — Ohio Supreme Court Chief Justice Maureen O’Connor, ACLU of Ohio, the conservative Buckeye Institute, public defenders and prosecutors.  Other bills signed into law by DeWine will reduce the “collateral sanctions” — additional punishments that were popular with tough-on-crime lawmakers over the past several decades.  Such sanctions made it more difficult to get professional licensing, housing, student financial aid, driver’s licenses and more.  “Again, we have a broad consensus that we shouldn’t be having those.  Once a person has served their time or served their probation, probably they should be able to move on with their lives,” DeWine said....

Additional reform efforts in 2021 will likely focus on Ohio’s cash bail system, the death penalty, knocking down the number of collateral sanctions people face when they’re convicted, holding the Ohio Parole Board accountable and pushing for criminal drug sentencing changes, said [Kevin] Werner of the Ohio Justice and Policy Center.

Also, while several criminal justice bills made it across the finish line, a comprehensive package of changes in Senate Bill 3 failed to win final approval.  SB3 called for reducing certain felony drug offenses to misdemeanors.  Shakyra Diaz, state director of the Alliance for Safety and Justice, which lobbied for SB3, said Ohio families still need solutions to the addiction crisis and the alliance will continue to work with lawmakers.  “Giving felony convictions to Ohioans with addictions only makes the problem worse, and inaction is not an option as more families lose loved ones to addiction and overdoses because they needlessly cycle through the criminal justice system without getting treatment,” Diaz said.

February 7, 2021 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Lots of great coverage at CCRC of lots of great 2020 criminal record reform activity

I blogged here last month about this big report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel which reviewed all the criminal record reforms enacted by states in 2020.   I know see that CCRC has been highlighting particular reforms on particular issues in this recent series of posts:

Regular readers likely realize that marijuana expungements are a topic of particular interest to me.  Back in 2018 I wrote an article focused just on this topic, "Leveraging Marijuana Reform to Enhance Expungement Practices," and this past year I co-wrote another piece focused on Arizona reforms that made much of this issue, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform."

February 7, 2021 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0)

"Can Prosecutors Help To End Mass Incarceration?"

The title of this post is the title of this article/book review authored Rachel Barkow now available via SSRN.  Here is its abstract:

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.”  While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration.  In this review, I explain why. 

Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments.  In this review, I document the resistance to prosecutors seeking to decarcerate.  The forces pushing back come from outside and inside the office.  We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors.  They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive.  If they are not putting their full support behind these institutional changes, one should question just how progressive they are.

But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own.  Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices.  Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control.  Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

February 7, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)