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February 20, 2021

"Does Forfeiture Work? Evidence from the States"

The title of this post is the title of this notable new report from the Institute for Justice and authored by Brian Kelly.  Here is the report's executive summary:

This study provides the first multistate analysis of whether forfeiture works to fight crime or is, instead, used primarily to generate revenue.  These competing claims lie at the heart of the policy debate over forfeiture, a legal tool that allows law enforcement agencies to seize and permanently keep people’s cars, cash and even homes if they suspect the property is connected to criminal activity.  Typically, any proceeds from the property go to law enforcement coffers. Critics charge that this creates an improper incentive for police and prosecutors to pursue forfeiture revenue instead of justice, especially under civil forfeiture laws that do not require a conviction or even criminal charges to forfeit property.  Law enforcement and other proponents counter that forfeiture is an essential crime-fighting tool and that forfeiture proceeds can help law enforcement fight more crime.

To test these claims, this study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively — Arizona, Hawaii, Iowa, Michigan and Minnesota — as well as detailed state and local crime, drug use and economic data.  The study examines forfeitures under state law alone as well as those conducted in concert with the federal government.

Results show:

  • More forfeiture proceeds do not help police solve more crimes — and they may, perversely, make police less effective at solving violent crimes.
  • More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade — and the reduction of drug use — as a primary purpose of forfeiture.
  • When local budgets are squeezed, police respond by increasing their reliance on forfeiture.  A one percentage point increase in unemployment — a common measure of economic health — was associated with an 11% to 12% increase in forfeiture activity.

In other words, this study finds no material support for the claims that forfeiture fights crime, either by enabling police to solve more crimes or by reducing drug use.  It does, however, find economic conditions have a large and statistically significant effect on forfeiture activity, suggesting that at least some forfeiture activity is motivated by a desire for revenue.

These results, like those from earlier studies, are particularly salient now, when local government budgets are suffering due to the COVID-19 pandemic.  The data suggest that during economic times like these police may pursue more forfeiture.

This report adds to mounting evidence that forfeiture fails to serve the public good, all while violating basic rights to property and due process, thus demonstrating the pressing need for forfeiture reform.

February 20, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Catching up on a week of criminal justice reads

A busy work week with lots of student conferences, Zoom meetings aplenty, and a great OSJCL symposium got me behind on interesting reading (and blogging) on a variety of criminal justice fronts.  So, catching up, here are some recent pieces catching my eye:

From The Atlantic, "Anissa Jordan Took Part in a Robbery. She Went to Prison for Murder. The legal doctrine that allows people to be prosecuted for murder even if they didn’t kill anyone has fallen out of favor across the globe. In America, it remains common."

From Courthouse News Service, "House Examines Supreme Court Shadow Docket"

From Fox17, "Michigan's recidivism rate continues to decline, MDOC says"

From the Los Angeles Times, "Years ago, I applauded the 40-year sentence for a shooter at a party. Now I’m rethinking things"

From National Geographic(!), "Sentenced to death, but innocent: These are stories of justice gone wrong. Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them."

From the New York Review of Books, "America’s Hidden Gulag: The nationwide federal detention of immigrants in county jails perpetuates a profit-driven system of mass incarceration."

From NBC News, "Did Illinois get bail reform right? Criminal justice advocates are optimistic: 'We live in a system today where we use money as the sole determining factor in determining whether somebody is going to be in jail or out of jail,' one justice advocate said."

From Reuters, "Biden's attorney general pick Garland to prioritize civil rights, combating domestic terror"

February 20, 2021 in Recommended reading | Permalink | Comments (0)

February 19, 2021

"Should Public Defenders Be Tweeting?"

The question in the title of this post is the headline of this notable new Vice article.  I recommend the lengthy piece in full, and I suspect more than a few readers might have more than a few thoughts on this important modern-day topic.  Here are just a few excerpts from a piece with lots of thought-provoking elements:

Public defenders had blogged about their work as long as a decade ago, and tweeting about arraignments wasn’t new, but [Scott] Hechinger and others in New York’s PD scene are responsible for popularizing the trend.  As it’s grown, however, criminal justice reform advocates and formerly incarcerated people have started to argue that these posts can put clients at risk of retaliation from judges and prosecutors, violate their privacy, and present ethical quandaries for public defenders talking so openly about their work on Twitter.  The optics of white public defenders gaining likes or retweets on stories of Black and brown suffering has also been called into question.  As advocacy efforts morph from live-tweets to slick video productions, and gain traction with a public increasingly likely to support justice reform, the question has become: who should be telling the story?...

They are a powerful voice in the justice system, but one fear for public defenders and defendants alike is that the judge, prosecutor, or parole officer will retaliate against tweets that are critical of their actions, said Qiana Johnson, executive director of Life After Release, a program that assists people with re-entry. Even those who have already served a sentence are often constrained from speaking out by probation or parole conditions. “Their advocacy could cost them,” she said....

There have been complaints filed against defense attorneys over their use of social media in recent years, though those are not public, said Ellen C. Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University, who studies ethics in law.  Prior to 2014, a Virginia attorney was disciplined for blogging about the cases he had won as a defense attorney, an act that constituted self-advertising, the state bar found, according to the 2013 law letter written by Nicole Hyland as part of an ethics committee.  An Illinois public defender was fired from her job and suspended by the bar for 60 days after posting client details in 2007 and 2008 on Facebook, including a picture of her client’s leopard-skin underwear — evidence in a trial.  Others have been disciplined for disparaging clients or judges.  In March 2018, the American Bar Association issued a formal opinion limiting the ability of attorneys to blog or comment publicly about their cases.

Many on PD Twitter have also been called out for “trading on the suffering of Black and brown people,” said [Nicole] Smith Futrell, cautioning that “just because you’re a public defender representing someone who’s experienced [the system,] it doesn’t mean that you’ve experienced that thing that you now get to tell.”  As defense attorneys push advocacy in new directions and accept media opportunities, they are encountering many of the ethical questions journalists have long wrestled with: does the individual or the larger narrative take precedence?  When does “storytelling” become exploitative?...

Brendon Woods, the chief defender in Oakland’s Alameda County Public Defender’s Office, has been in the field since the late 90s when there were a few shared desktop computers available for public defenders to use. He sees plenty of law enforcement outfits on Twitter and said the voices of public defenders have been game-changing. They have power, he said, but that power must be used with care.  “Our clients, they’ve been dehumanized by the system so much, you don’t need to have it happen from people who are tweeting or posting stories on Facebook,” he said, “and without any thought or strategy being put into them or why they're doing it.”

February 19, 2021 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

February 18, 2021

ACLU writes to AG-nominee Merrick Garland urging action on "five critical issues"

The ACLU today released this notable seven-page letter directed to Attorney General-Designate Merrick Garland. Here is how it gets started:

Congratulations on your nomination to lead the U.S. Department of Justice (DOJ).  For nearly 100 years, the ACLU has been our nation’s guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. Your nomination comes at a moment when America faces an overdue reckoning with racial injustice that can start to be addressed with policies such as adopting a federal use-of-force standard, decriminalizing marijuana, ending mandatory minimum sentencing, and abolishing the death penalty.  We applaud President Biden’s pledge to heal our country and reform our criminal legal system, and we look forward to working with him and DOJ to advance our shared goals.

At your confirmation hearing before the Senate Judiciary Committee on February 22, we urge you to make clear that under your leadership DOJ will adopt policies to build a more racially just criminal legal system.  In addition to matters we anticipate that you already plan to address, we urge you to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.

February 18, 2021 in Who Sentences | Permalink | Comments (3)

"Rigging the jury: How each state reduces jury diversity by excluding people with criminal records"

The title of this post is the title of this notable new report from the folks at Prison Policy Initiative. Here are excerpts from the report's first part:

In courthouses throughout the country, defendants are routinely denied the promise of a "jury of their peers," thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted (or sometimes simply accused) of crimes from serving on juries. These laws bar more than twenty million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices exist in every state and often ban people from jury service forever....

As we have chronicled extensively, the criminal justice system disproportionately targets Black people and Latinx people — so when states bar people with criminal convictions from jury service, they disproportionately exclude individuals from these groups.  Of the approximately 19 million Americans with felony convictions in 2010, an estimated 36% (nearly 7 million people) were Black, despite the fact that Black people comprise 13% of the U.S. population.  Although data on the number of Latinx people with felony convictions is difficult to find (because information about Latinx heritage has not always been collected or reported accurately within the criminal justice system), we do know that Hispanic people are more likely to be incarcerated than non-Hispanic whites and are overrepresented at numerous stages of the criminal justice process.  It stands to reason, then, that Latinx populations are also disproportionately likely to have felony convictions.

As a result, jury exclusion statutes contribute to a lack of jury diversity across the country. A 2011 study found that in one county in Georgia, 34% of Black adults — and 63% of Black men — were excluded from juries because of criminal convictions. In New York State, approximately 33% of Black men are excluded from the jury pool because of the state’s felony disqualification law.  Nationwide, approximately one-third of Black men have a felony conviction; thus, in most places, many Black jurors (and many Black male jurors in particular) are barred by exclusion statutes long before any prosecutor can strike them in the courtroom.

February 18, 2021 in Collateral consequences, Who Sentences | Permalink | Comments (0)

DEPC event on "Criminal Justice Reform in Ohio" and original resources on "Drug Sentencing Reform in Ohio"

SB3-Panel_for-socialI am very excited that next week the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law is hosting a virtual panel discussion, titled "Where Do We Go From Here?: Criminal Justice Reform in Ohio" at 2pm on February 24, 2021.  Here is the description and run down of the exciting event:

Ohio has a long history of criminal justice reform and drug sentencing reform, and yet few can be pleased that Ohio still has the 12th highest incarceration rate in the country and one of the highest rates of overdose deaths. With the passage of HB1 and the failure of SB3 at the end of 2020, many are left wondering what can and cannot be achieved through legislative reforms in Ohio.  Please join us for a discussion of Ohio’s recent reform history, what we might expect in the near future, and how research and experience in other states can inform reform efforts in the Buckeye State.

Panelists

Speakers:
Sara Andrews, executive director of the Ohio Criminal Sentencing Commission
Gary Daniels, chief lobbyist at the ACLU of Ohio
Micah Derry, state director for the Ohio chapter of Americans for Prosperity
Andrew Geisler, legal fellow at The Buckeye Institute
Kyle Strickland, deputy director of race and democracy at the Roosevelt Institute and senior legal analyst at Kirwan Institute for the Study of Race and Ethnicity

Moderator:
Douglas A. Berman, executive director of the Drug Enforcement and Policy Center

I am also quite pleased to note that the link in the above description takes folks to this original resource page titled "Drug Sentencing Reform in Ohio."  Here is some of the discussion and resources to be found at that page:

Since 2014, seven states have enacted reforms that have defelonized low-level drug offenses: Alaska, California, Colorado, Connecticut Oklahoma, Oregon, and Utah.  In late 2020, the Ohio House of Representatives opted not to join this growing list by declining a vote on Senate Bill 3 which sought to reclassify some low-level drug offenses from felonies to misdemeanors.  Its origins can be traced back to the ambitious, but ultimately failed, 2018 Issue 1 ballot initiative.  The constitutional amendment initiative included language aimed at reclassifying as misdemeanors those offenses related to drug possession and use, prohibiting courts from sending people back to prison for non-criminal probation violation, and reallocating savings created from lowering prison populations toward drug treatment services.  Like SB3, Issue 1 was vehemently opposed by judges and prosecutors around the state.

Though SB3 stalled, an array of other criminal justice reforms were enacted in the last General Assembly of 2020, including House Bill 1.  HB1 allows more wrongdoers to potentially benefit from alternative dispositions and record sealing. Some argued that the passage of HB1 addressed sufficiently some of the concerns driving support for SB3....

In addition to organizing [the Feb 24 panel] event, DEPC has gathered a variety of other resources to aid in understanding the complex evolution of criminal justice and drug sentencing reforms in Ohio, including a visualization of Ohio incarceration rates and a timeline of Ohio reforms since 2010.  Please see below for commentaries and writings on current and past drug sentencing reform efforts in Ohio, DEPC’s prior events focused on Ohio’s criminal justice reforms, and research aimed at answering some of the most important questions raised by proponents and opponents alike.

February 18, 2021 in Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

February 17, 2021

"'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery"

The title of this post is the title of this new paper available via SSRN and authored by Alison Lynch, Michael L. Perlin and Heather Cucolo.  Here is its abstract:

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment.  Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child.  Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

In this paper, we discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can better prepare an effective defense or mitigation.  We consider, in some depth, several of the substantive areas of criminal law and procedure in which an understanding of TBI is especially significant (including, but not limited to, competency status, the insanity defense and the death penalty), and assess the quality of counsel –and experts -- in such cases, again, in some instances, using the Montgomery case as a prism.

We believe that one (at least partial) remedy for the current situation is a turn to therapeutic jurisprudence (TJ) The TJ doctrine emphasizes giving an individual client dignity, voice, validation and voluntariness of action and decision.  This is particularly important for an individual with TBI, who will likely have the capacity to make the majority of decisions about his case, but who may still need behavioral treatment or interventions for symptoms of the TBI.  We will discuss the ways that TJ plays into these issues, and how TJ must be the grounding of any representation of this population.  We conclude with some modest suggestions as to how we can begin to make needed changes in the criminal justice system to take all of these issues into account.

February 17, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

The Sentencing Project releases "No End in Sight: America’s Enduring Reliance on Life Imprisonment"

The Sentencing Project has done remarkable work in recent years tracking (and advocating against) the growth of life and functional life sentences in the United States. This great work continues with the release today of this big report authored by Ashley Nellis titled "No End in Sight: America’s Enduring Reliance on Life Imprisonment." The whole 46-page report is worth a close read for anyone concerned about extreme punishments and mass incarceration, and here the start of the report's initial "Findings and Recommendations" section:

Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000.  Today, it’s 1.4 million; and more than 200,000 people are serving life sentences — one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.
Nearly five times the number of people are now serving life sentences in the United States as were in 1984, a rate of growth that has outpaced even the sharp expansion of the overall prison population during this period.  The now commonplace use of life imprisonment contradicts research on effective public safety strategies, exacerbates already extreme racial injustices in the criminal justice system, and exemplifies the egregious consequences of mass incarceration.
In 2020, The Sentencing Project obtained official corrections data from all states and the Federal Bureau of Prisons to produce our 5th national census on life imprisonment.
KEY FINDINGS
• One in 7 people in U.S. prisons is serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more), totaling 203,865 people;
• The number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since our first census in 2003;
• 29 states had more people serving life in 2020 than just four years earlier;
• 30% of lifers are 55 years old or more, amounting to more than 61,417 people;
• 3,972 people serving life sentences have been convicted for a drug-related offense and 38% of these are in the federal prison system;
• More than two-thirds of those serving life sentences are people of color;
• One in 5 Black men in prison is serving a life sentence;
• Latinx individuals comprise 16% of those serving life sentences;
• One of every 15 women in prison is serving life;
• Women serving LWOP increased 43%, compared to a 29% increase among men, between 2008 and 2020;
• The population serving LWOP for crimes committed as youth is down 45% from its peak in 2016;
• 8,600 people nationwide are serving parole-eligible life or virtual life sentences for crimes committed as minors.

February 17, 2021 in Data on sentencing, Detailed sentencing data, Examples of "over-punishment", Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Notable new press report on accounts of recent federal execution particulars

The AP has this notable new story, headlined "Executioners sanitized accounts of deaths in federal cases."  Here is how it gets started:

Executioners who put 13 inmates to death in the last months of the Trump administration likened the process of dying by lethal injection to falling asleep and called gurneys “beds” and final breaths “snores.”  But those tranquil accounts are at odds with reports by The Associated Press and other media witnesses of how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect inside the U.S. penitentiary death chamber in Terre Haute, Indiana. The AP witnessed every execution.

The sworn accounts by executioners, which government filings cited as evidence the lethal injections were going smoothly, raise questions about whether officials misled courts to ensure the executions scheduled from July to mid-January were done before death penalty opponent Joe Biden became president.  Secrecy surrounded all aspects of the executions. Courts relied on those carrying them out to volunteer information about glitches. None of the executioners mentioned any.

Questions about whether inmates’ midsections trembled as media witnesses described were a focus of litigation throughout the run of executions. Inmates’ lawyers argued it proved pentobarbital caused flash pulmonary edema, in which fluid rushes through quickly disintegrating membranes into lungs and airways, causing pain akin to being suffocated or drowned.  The Constitution prohibits execution methods that are “cruel and unusual.”

The discrepancies could increase pressure on Biden to declare his administration won’t execute any of the roughly 50 federal inmates still on death row.  Activists want him to go further by backing a bill abolishing the federal death penalty.  Biden hasn’t spoken about any specific action.

During the Sept. 22 execution of William LeCroy, convicted of killing Georgia nurse Joann Lee Tiesler in 2001, the 50-year-old’s stomach area heaved uncontrollably immediately after the pentobarbital injection.  It lasted about a minute, according to the AP and other reports.

Executioner Eric Williams stood next to LeCroy as he died.  But Williams made only cursory reference to “the rise and fall” of LeCroy’s abdomen in his account.  Shortly after serving in five of the recent executions, Williams was named the interim warden of the high-profile New York City lockup where Jeffrey Epstein died in 2019.  “During the entirety of the execution, LeCroy did not appear to be in any sort of distress, discomfort, or pain,” Williams wrote.  “A short time after he took a deep breath and snored, it appeared to me that LeCroy was in a deep, comfortable sleep.”

The distinctive jerking and jolting was visible in at least half the executions, according to the AP and other media accounts.  Among multiple executioner accounts, none described any such movements.  All employed the same sleep metaphors.

When Donald Trump’s Justice Department announced in 2019 it’d resume executions after a 17-year hiatus, it said it would use pentobarbital alone.  Manufacturers were no longer willing to supply the combination of drugs used in three federal executions from 2001 to 2003, explaining they didn’t want drugs meant to save lives to be used for killing.

One point of contention during the litigation was whether, even if pulmonary edema did occur, inmates could feel it after they appeared to be knocked out.  Experts for the prisoners said the drug paralyzes the body, masking the pain prisoners could feel as they died.  None of those executed appeared to writhe in pain.  But audio from the death chamber to the media viewing room was switched off just prior to the injections, so journalists couldn’t hear if inmates groaned or complained of pain.

February 17, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

"Revocation and Retribution"

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

Revocation of community supervision is a defining feature of American criminal law.  Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year.  While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release.  Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.”  Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation.  Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

February 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2020"

The US Justice Department's Bureau ofJustice Statistics today released this interesting new data report titled "Federal Prisoner Statistics Collected under the First Step Act, 2020."  Despite the year in its title, the report provides data on the federal prison population at the end of 2019 (so before any COVID-era shocks).  Here is how this 19-page report gets started and a few of its "key findings":

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually. BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs. Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2019, which represented the first full year under the FSA, and were collected in 2020. Data for 2020 will be available from the BOP in the second half of 2021. Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.

Key findings

  • The portion of federal prisoners who were the parent, step-parent, or guardian of a minor child (defined as a dependent age 20 or younger by the BOP) grew from 45% to 49% from year-end 2018 to year-end 2019 (table 1).
  • On December 31, 2019, a total of 31,458 federal prisoners were non-citizens of the United States (18% of all BOP prisoners), and 21,922 prisoners identified English as their second language (13% of all BOP prisoners). 

  • During 2019, a total of 3,791 federal prisoners earned a general-equivalency degree (GED) or other equivalent certificate while in prison. 

  • In 2019, there were 386 incidents of prisoners being placed in administrative maximum - segregated housing, the BOP’s most restrictive level of segregated housing. 

  • Of the 180 pregnant prisoners in federal custody in 2019, a total of 94 gave birth in custody and 74 were released before giving birth (table 2)....

  • While in custody, 116 federal prisoners received medication-assisted treatment for a substance-use disorder in 2019....

  • ƒIn 2019, all 122 BOP-operated facilities had video-conferencing capabilities for prisoners to participate in judicial hearings, foreign embassy consultations, reentry-related communications from probation offices, preliminary reentry preparation, disciplinary hearings, and the Institution Hearing Program.

  • A total of 89,369 prohibited acts occurred in BOP-operated facilities during 2019, of which 63,025 were committed in medium- or high-security facilities (71%) (table 4).

  • A total of 54,848 individual federal prisoners committed the 89,369 prohibited acts (table 5).

  • More than half of the individuals who committed prohibited acts in 2019 were age 35 or older (29,175 prisoners or 53%).

  • During 2019, there were 1,252 physical assaults on BOP staff by federal prisoners, with 18 of the assaults resulting in serious injury to the staff member (table 7).

  • In 2019, a total of 11,491 persons volunteered at BOP-operated facilities (table 8).

  • Faith-based programs made up 56% of all BOP recidivism-reduction partnerships in 2019 (table 9).

February 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

February 15, 2021

"Just Let People Have Cellphones in Prison"

The title of this post is the title of this notable new Slate commentary authored by Hannah Riley.  I recommend the full piece, and here is how it starts:

In 2017, a man named Willie Nash was booked into a Mississippi county jail on a misdemeanor charge.  For reasons that aren’t clear, his cellphone wasn’t confiscated as the law dictated.  When he asked a jailer for a charger, the phone — which he had been using to text his wife — was seized.  Nash was then sentenced to 12 years for possessing the cellphone.  The case went all the way up to the Mississippi Supreme Court, where the 12-year sentence was affirmed. “While obviously harsh,” Justice James D. Maxwell II wrote for the court, “Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.”  Mr. Nash, a father of three, will be released back to his family in January of 2029, for the crime of texting his wife from jail.

In all federal and state prisons and jails, personal cellphones are classified as contraband — illegal for incarcerated people to possess.  Incarcerated people are allowed to communicate with loved ones via letters, expensive phone calls in a centralized location (done through a prepaid account or collect calls, for a limited amount of time), or sometimes through expensive email and video messages on a prison-issued tablet.  Due to COVID-19, in-person visitation has been halted in most prisons and jails since last March.

These rigid policies isolate incarcerated people and weaken their ties to friends and family. And this isolation radiates harm well beyond each individual.  The vast majority of the millions of people currently incarcerated in this country will, at some point, be released.  Every year, roughly 600,000 people leave prisons across the U.S., and a much higher number cycle in and out of jails.  Roughly 2.7 million children in the U.S. have an incarcerated parent....  There is a wealth of research that confirms that the stronger the relationships and connections to loved ones and community, the better a person will fare once they are released from prison or jail.  We’ve known this for a long time.  A study from 1972 noted that, “The central finding of this research is the strong and consistent positive relationship that exists between parole success and maintaining strong family ties while in prison.”  Decades later, the findings remain the same.  “Incarcerated men and women who maintain contact with supportive family members are more likely to succeed after their release,” a 2012 Vera Institute report found.

There is one obvious way to facilitate these community ties: allow incarcerated people to have cellphones.  For more than a decade, jailers and elected officials have attempted to incite a moral panic in the general public around the danger of cellphones, warning that incarcerated people would only use them to organize hits and buy drugs and run gangs on the outside.

It’s true that some incarcerated people have used contraband phones to extort people on the outside.  But targeting the tools rather than the roots of the corruption and violence within prisons is misguided.  A full decade ago, the New York Times conceded that the harsh penalties and increased vigilance weren’t working to keep phones out of prisons: “The logical solution would be to keep all cellphones out of prison. But that is a war that is being lost, corrections officials say.”  That hasn’t changed.  If you want to find a cellphone in prison or jail now, you can.  One former sheriff in South Carolina even allowed detainees in his jail to purchase cheap cellphones from commissary, arguing access to cellphones actually improves safety....

The reality is that prisons and jails are already saturated with cellphones (mostly smuggled in by correctional officers), and the vast majority of people use them in the exact same ways the vast majority use them on the outside: to stay connected.  To stave off boredom.  To learn.  To laugh.

February 15, 2021 in Prisons and prisoners, Technocorrections | Permalink | Comments (0)

Any guesses for when we might again have a fully functioning US Sentencing Commission?

It has been far too long since the US Sentencing Commission has been fully functional, and this post is my indirect way of saying that I hope getting the USSC back in action with a full slate of Commissioners is a top priority for the Biden Administration.  But, given that we still do not yet have a new confirmed Attorney General nearly a month into the new administration, and especially with other business (and other judicial openings) sure to be a higher priority, I am wondering if it may still be months before we can start talking seriously about what the "new Commission" ought to be doing to advance criminal justice reform.

Former Prez Donald Trump's track record with respect to the US Sentencing Commission was quite spotty.  As noted in this April 2017 post, the USSC had only two of seven commissioner slots filled at the start of 2017 (which led the Commission not to advance any formal amendments to the guidelines in that year).  Senate confirmation of two nominees gave the USSC a functioning quorum to be able to move forward with 2018 guideline amendments.  But a slate of new nominees to the Commission by former Prez Trump in March 2018 were controversial and got a cold shoulder from the Senate leaving the USSC again with only two Commissioners (and thus without a quorum) as it entered 2019.  Prez Trump  thereafter did not announce new nominees until August 2020 and, according to this recent Law360 piece, those names were never even formally sent to the Senate.

Long story short, the US Sentencing Commission was only somewhat functional for a small portion of the last four years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff has completed lots of research and has churned out many reports in the interim, but the FIRST STEP Act's passage in December 2018 made it particularly problematic for the USSC to have been non-functional in terms of formal amendments or agendas in recent years.

As reveled on this official US Sentencing Commission page, right now the USSC currently has only a single Commissioner and so will need six new confirmed members to be back to full strength (and it needs at least three new commissioners to have a quorum to even be somewhat functional).  All these vacancies present Prez Biden with an important opportunity to revive and reshape the work of the Commission at a time when the work of the Commission could and should be especially important.  And, as I noted in this post in November, the criminal justice reform recommendations of the Biden-Sanders Unity Task Force (first discussed here; available here pp. 56-62) included this notable recommended agenda for the USSC:

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision.

I am hopeful that the Biden Administration is already working toward developing a list of nominees for the Commission (which, by statute, have to be bipartisan). I am especially hopeful that the Biden team might be already getting input on this list from key folks in the Senate so that any eventual slate of nominees will be well-received and quickly confirmed.  But, as suggested at the outset, because of various competing priorities and the (usual and unusual) inside-the-Beltway distractions, I really do not have a good guess to the question in the title of this post.

February 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

February 14, 2021

"Black on Black Representation"

The title of this post is the title of this new article authored by Alexis Hoag now availble via SSRN.  Here is its abstract:

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services.  This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants.  Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship.  Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches.  First, it connects indigent representation to existing literature from other fields — clinical therapy and education — both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients.  To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust; factors that the American Bar Association identifies as integral to criminal defense.  Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine.  The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to poor people.

February 14, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (4)

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)