« February 14, 2021 - February 20, 2021 | Main

February 27, 2021

"Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk"

The title of this post is the title of this paper recently posted to SSRN and authored by Amy Cyphert.  Here is its abstract:

The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018.  The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism.  The resulting tool — PATTERN — was released in the summer of 2019 and quickly updated in January of 2020.  It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic.  It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm.

This Article evaluates PATTERN, both in its development as well as its still-evolving implementation. In some ways, the PATTERN algorithm represents tentative steps in the right direction on issues like transparency, public input, and use of dynamic factors.  But PATTERN, like many algorithmic decision-making tools, will have a disproportionate impact on Black inmates; it provides fewer opportunities for inmates to reduce their risk score than it claims and is still shrouded in some secrecy due to the government’s decision to dismiss repeated calls to release more information about it.  Perhaps most perplexing, it is unclear whether the tool actually advances accuracy with its predictions.  This Article concludes that PATTERN is a decent first step, but it still has a long way to go before it is truly reformative.

February 27, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

What kind of "behind the scenes" clemency moves might Prez Biden's staff be working on?

The question in the title of this post is prompted by a sentence in this Vox piece by German Lopez (strangely) headlined "Biden’s secret weapon for criminal justice reform."  The article is about the power of the President to grant clemency, and I think it a bit strange to call that power a "secret weapon" given all the attention that clemency has received in recent years and given that there has already been a number of prominent calls for Prez Biden to use this power in prominent ways (examples blogged here and here and here and here).  I guess the headline speak to the tendency of some to look past the clemency power as a means to address systemic issues like mass incarceration, and the piece is still a worthwhile read.  Here is an excerpt that includes the sentence that prompts the question in the title of this post:

[S]ome advocates have argued for a ground-up rethinking of clemency: The president could reform the whole process to systematically cut sentences for federal inmates caught in the frenzy of America’s drug war and mass incarceration....

[T]he president or his advisory board could set standards, targeting inmates with long sentences (especially for nonviolent crimes), those under mandatory minimums, or people who have been rehabilitated in prison.

Biden, at least, supports using clemency powers for some of these ends — saying in his criminal justice reform plan that he’d use his clemency powers “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

But since taking office, Biden hasn’t made any public moves in this area — although his staff is reportedly working on it behind the scenes.

Biden could be waiting for his attorney general nominee to get Senate approval. Or he could be concerned about the political risks: If an inmate he releases goes on to commit a crime, it could fuel a backlash. (The White House didn’t respond to a request for comment.)

Prez Biden should have his Attorney General nominee approved next week, so perhaps reported "behind the scenes" work will become public in short order. I remain hopeful that significant use of the clemency power will be part of a multi-prong criminal justice reform push by the Biden Administration, but I will only believe it when I see it.

A few of many prior related posts:

February 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of great new reads from various parts of The Appeal

There is so much important and impressive content at The Appeal, I know I often miss some great content within the site's many sections. But I figure I can use this space to make sure others do not miss a few pieces from different part of the site this past week that may be of special interest to sentencing fans:

From The Lab

From The Point

February 27, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

February 26, 2021

New coalition letter urges Prez Biden "to aggressively reduce jail and prison populations" in first 100 day

Via email this afternoon, I learned of this new extended letter addressed to Prez Biden on behalf of The Leadership Conference on Civil and Human Rights and organizations urging various criminal justice with particular focus on "the health and safety of incarcerated individuals during the COVID-19 pandemic." The full letter covers lots of ground, and here is its first substative paragraph:

While the pandemic jeopardizes everyone’s safety, incarcerated individuals are much more likely to be people with disabilities or to have pre-existing health conditions, making them exceptionally vulnerable due to overcrowding, unsanitary prison conditions, and a lack of access to quality healthcare services.  Though the COVID-19 vaccine is a critical advancement, distribution to incarcerated populations will take precious time, and correctional medical experts expect participation rates will be low because the Bureau of Prisons (BOP) has failed to pair vaccine rollout with needed outreach and education.  Indeed, BOP has already reported a low adherence rate by staff to the vaccine: a January 15, 2021 BOP press release reported that roughly half of staff had agreed to accept the vaccine.  Moreover, the emergence of new strains of the virus that are potentially more contagious and deadly means that the need to protect high-risk individuals remains as urgent as ever.  To uphold your campaign commitments to advance racial justice and criminal justice reform and effectively confront COVID-19 during your first 100 days, it is imperative that you use existing authorities to aggressively reduce jail and prison populations.

February 26, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Federal prosecutors still pursuing capital charges over a month into Biden Administration

There has been considerable advocacy from progressives urging Prez Biden to commute federal death row and to halt all capital prosecutions (examples here and here).  Against that backdrop, I thought this new Justice Department press release was notable under this full headline: "Death Penalty Sought For Murder Of Fort Campbell Soldier; Victim's murder occurred on the Fort Campbell, Kentucky military installation."   Interestingly, the start of the release specifies that former Prez Trump's last Attorney General was the one who authorized this prosecution in the Western District of Kentucky:

The United States filed Notice of Intent to Seek the Death Penalty for Victor Everette Silvers, in connection with the death of Brittney Niecol Silvers, announced Acting United States Attorney Michael A. Bennett.  Former Acting Attorney General Jeffrey A. Rosen authorized and directed the United States Attorney’s Office for the Western District of Kentucky to seek the death penalty.

According to the superseding indictment, returned on Tuesday, February 23, 2021, Victor Everette Silvers murdered Brittney Niecol Silvers on October 14, 2018, by shooting her with a firearm at the Fort Campbell, Kentucky military installation.  Brittney Niecol Silvers was, at the time of her death, assigned to the 96th Aviation Support Battalion at Fort Campbell, Kentucky.  The penalty for First-Degree Murder (Premediated) is Death or Life Imprisonment.

Victor Everette Silvers is also charged with Attempted First-Degree Murder, Domestic Violence, Violation of a Protection Order, Possession of a Firearm by a Prohibited Person, and two counts of the Use/Carry/Discharge of a Firearm During and in Relation to a Crime of Violence.

This press release is a useful reminder that, while it may not be essential for Prez Biden to make an immediate decision about whether to commute the sentences of persons already on federal death row, there is more immediate urgency for the Biden Administration about whether to continue seeking to add to the number of persons on federal death row.

February 26, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Split Washington Supreme Court rules state’s strict liability felony drug possession law violates due process

The Washington Supreme Court issued an interesting split decision yesterday concerning the state's drug possession law.  Here is how the majority opinion in Washington v. Blake, No. 96873-0 (Wash. Feb. 25, 2021) (available here), gets started and a few key passages:

Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.  This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power?  The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power....

The question before us today is whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize.  Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct.  States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated.  The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.

But the possession statute at issue here does far more than regulate drugs.  It is unique in the nation in criminalizing entirely innocent, unknowing possession.

February 26, 2021 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

February 25, 2021

"What If We Pay People to Stop Using Drugs?"

The question in the title of this post is the headline of this New Republic piece by Zachary Siegel.  Its subheadline captures its themes: "Traditional treatments often take place in expensive facilities, demand total abstinence, and rely on punitive methods of control.  A harm reduction model turns all of that on its head."  Here is an excerpt (with links from the original):

In contingency management programs, a positive urine screen does not result in punishment the way it might in other treatment programs, especially when those are court mandated and using drugs can result in jail time.  The only negative reinforcement in contingency management is that a positive urine screen means the reward cycle resets, along with the bonus count.  You have to start over. 

“People can come high,” Mike Discepola, vice president of behavioral and substance use health at the San Francisco AIDS Foundation, said.  The whole idea of the program is to match a participant’s interest with their ability, Discepola explained.  If someone is continually testing positive for stimulants, then treatment, counseling, and care are still available to them.  If a participant tests positive, they’re encouraged to discuss why they used, and counselors try to motivate them to keep showing up and try again.  No one gets turned away, and no one gets punished for using again.

But that’s exactly what conventional treatment, and the legal system, does.  People who use drugs are often given an ultimatum to either comply with an abstinence-focused treatment program or go to jail.  In Pennsylvania, one type of probation called “addict supervision” runs on a strict zero-tolerance approach where if participants test positive for drugs, or even miss a drug test, they’re detained and potentially given an even harsher sentence than the one they are hoping to avoid by agreeing to supervision in the first place.  All this, mind you, for low-level drug arrests and minor offenses.  Federal data from 2012 shows that 44 percent of men aged 19 to 49 who are on probation or parole could benefit from addiction treatment, but just over one-quarter actually get it.  Even when they do, it’s hard to know if that treatment is truly grounded in compassionate health care or just punishment by another name....

Providing financial incentives is a common practice in health care and most of our regular lives.  Employers offer their workers gym memberships and Fitbits to encourage certain behavior.  If you’ve ever used points earned on a credit card or accumulated miles from traveling, that’s an incentive, too....

Prevailing stigmas and stereotypes label people who use drugs as selfish, irresponsible, and criminal.  Why pay them money? Aren’t they just going to buy more drugs?  Attitudes against “coddling” people who use drugs are often deployed to prevent effective harm reduction interventions from being implemented.  Rod Rosenstein, Trump’s former deputy attorney general, argued against supervised consumption sites in The New York Times, saying the goal was to “fight drug abuse, not subsidize it.”  

February 25, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Merrick Garland, cannabis policy, and restorative justice"

The title of this post is the title of this notable new commentary from John Hudak over at Brookings FixGov blog.  I recommend the piece in full, and here are excerpts:

Judge Garland recognized two realities about cannabis enforcement — one not new to AG nominees, the other quite new.  First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources.  There are plenty of other crimes that the Justice Department should be focused on.  Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees.  Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one.  Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system.  It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty....

Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders.  By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.  The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency.  However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers.  He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others.  That proposal urges President Biden to pardon non-violent cannabis offenders.  That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s.  It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs.  A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs.

February 25, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Noticing some notable criminal justice panels at CPAC 2021

As highlighted by this NPR preview, the annual Conservative Political Action Conference (CPAC) kicks off tonight and concludes Sunday with former Prez Trump giving his first big speech since leaving office. Though there are lots and lots of storylines surrounding this year's CPAC, and I was intrigued to see a few criminal justice reform programs appearing on the CPAC 2021 agenda

Notably, one theme for various CPAC panels is the Bill of Rights, with Senator Mike Lee slated to give a speech tomorrow morning titled "Why the Left Hates the Bill of Rights... and We Love It."  But it is not exactly clear that the CPAC folks really loves ALL of the Bill of Rights: the CPAC agenda has a whole lot more folks slated to speak about those parts of the Bill of Rights that primarily deal with civil rights rather than criminal defendant rights.  For example, the Fifth Amendment panel on the first day has four participants focused on "Freedom from Confiscation of Private Property" and nobody speaking about the array of criminal procedure protections also in the Fifth Amendment.  Still, it is encouraging to see that there will be these panels on the even Amendments dealing with criminal issues:

Amendment IV: Unreasonable Search and Seizures

Louis Reed, Dream Corps Justice
Pastor Darrell Scott, CEO of National Diversity Coalition for Trump
Moderated by David Safavian, American Conservative Union

Amendment VI: Rights of the Accused

KT McFarland, American Conservative Union Foundation Board Member

Amendment VIII: Cruel and Unusual Punishment: Does Tough on Crime Messaging Work on Election Day?

Doug Deason, Deason Capital Services LLC
Rep. Byron Donalds (FL-19)
Jim McLaughlin, Pollster for President Trump
Fmr. Rep. Mark Walker (NC-06)
Moderated by Brett Tolman, American Conservative Union Foundation

I find it a bit discouraging to see only two panelists scheduled to discuss the Fourth Amendment and a single person due to talk about the Sixth Amendment (while panels on the "hot button" Third and Seventh Amendments are together bigger).  I find it even more discouraging that the panel on the Eighth Amendment, an amendment intended to preclude certain extreme forms of punishment no matter their political support, is going to be all about about whether extreme forms of punishment are still politically popular.

Still, I am glad these topics will be covered, and this one additional CPAC 2021 panel is especially interesting:

Conservative Prosecutors: Conservative Reforms

David O. Leavitt, Prosecutor for Utah County
Brett Tolman, American Conservative Union Foundation
Kent Volkmer, Pinal County Attorney
Tori Verber Salazar, DA for San Joaquin County, CA
Moderated by Chelsea Murphy, Right on Crime

As regular readers know, the so-called "progressive prosecutor" movement truly is a hot topic in criminal-justice reform and academic circles.  I am quite intrigued to see a panel at CPAC embrace the label "Conservative Prosecutors," and I am very interested to hear what conservative prosecutors would consider "conservative reforms."

February 25, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

February 24, 2021

New commentary calling for Prez Biden to revive the US Sentencing Commission

In this post earlier this month, I wondered aloud about when we might reasonably expect Prez Biden to make needed appointments to the US Sentencing Commission.  This issue remained on my mind when I was recently asked to write a commentary for ASU's new Crime and Justice News site.   Specifically, I decided to write on "Reviving the U.S. Sentencing Commission," and here is an excerpt from this commentary (links from original):

[F]ederal sentencing politics and policy development have transformed dramatically in recent years.  Presidents Obama and Trump did not agree on much, but they both supported and signed major federal sentencing reform legislation designed to reduce punishment levels.  Huge majorities in Congress passed the Fair Sentencing Act in 2010 and the FIRST STEP Act in 2018, demonstrating strong bipartisan support for impactful changes to federal sentencing laws and practices.  Congress even titled its 2018 legislation to signal the law was to be just the first in a series of reform steps for the federal justice system.  Meanwhile, a global pandemic and heightened concern about racial injustices in 2020 have only increased calls for change and further heightened the moral and practical imperatives for the U.S. Sentencing Commission to pursue big and bold sentencing reforms.

But, problematically, the U.S. Sentencing Commission presently cannot advance any reforms because persistent vacancies have crippled its ability to function.  Open commissioner slots were left unfilled in the final years of the Obama Administration, and new nominees advanced by President Trump in March 2018 were controversial and got a cold shoulder from the Senate.  Remarkably, the agency Congress created to advance sound “sentencing policies and practices” lacked a quorum for much of the Trump Administration as Congress debated, enacted and oversaw the initial implementation of the landmark FIRST STEP Act.  As of this writing, the Commission currently has only a single Commissioner; the agency now needs six new confirmed members to get back to full strength and at least three new commissioners to be somewhat functional.

The current vacancies not only create a critical need for President Biden to revive the U.S. Sentencing Commission, but also provide a critical opportunity to reimagine who serves on this Commission and how it approaches its work.  Circa 2021, we have not just bipartisan political support for meaningful criminal justice reforms at local, state and federal levels, but also a wide and diverse array of individuals with a deep reserve of sentencing expertise and experiences.  President Biden must make it a priority to nominate a full slate of new commissioners with diverse backgrounds and experiences who will advance an ambitious, grand view of how the Commission can and should seek to meet our current criminal justice moment.

In a letter to Democratic Senators following his election, President Biden signaled an interest in nominating for judgeships “individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”  This sentiment can and must carry over to nominations to the U.S. Sentencing Commission, which has historically been dominated by persons with prosecutorial backgrounds.  With millions of persons federally prosecuted in recent decades and with a third of all U.S. adults burdened with some kind of criminal record, representing “Americans in every walk of life” in this context must include individuals involved in the justice system.

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”  As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.”  Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system.  President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

February 24, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

"Viral Injustice"

The title of this post is the title of this notable new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

February 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Potent call for new Attorney General to address how "mass detention creates mass incarceration"

Alison Siegler and Kate M. Harris have this notable new New York Times op-ed under the headline "How Did the ‘Worst of the Worst’ Become 3 Out of 4?: Merrick Garland can bring bail reform to the federal justice system."  Here is how the efective piece gets started and concludes:

Few see Judge Merrick Garland, President Biden’s pick for attorney general, as a progressive who will reform the criminal legal system. But the Biden administration recently acknowledged that mass incarceration does not make us safer.  And as the nation’s chief federal prosecutor, if confirmed, Judge Garland will have the power to prioritize federal bail reform and reduce sky-high rates of pretrial jailing.  Doing so will decrease mass incarceration, advance racial justice and enable Mr. Garland to stake his claim as a progressive prosecutor.  In fact, federal bail reform is an area where he may have already shown an appetite for change.

In November, voters across the nation overwhelmingly chose reform-oriented progressive prosecutors over “law and order” challengers.  Red and blue districts elected prosecutors who ran on a promise to use their office to enact change. Some of these prosecutors promised to stop pursuing low-level drug crimes.  And at least one has since ended the use of cash bail for certain crimes.  But while the progressive-prosecutor movement has gained momentum at the state and county levels, it hasn’t gotten any traction in the federal system.

Mr. Garland will be able to change this by disrupting the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.  During his time as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Garland was a member of the Judicial Conference of the United States, the main policymaking organization for the federal bench.  Since 2017, the Judicial Conference has repeatedly called on Congress to reform the federal bail law by eliminating what is known as the “presumption of detention” for many drug cases.

While the Supreme Court famously said that freedom should be the default for people awaiting trial, current law directs judges to assume that people charged with certain crimes — including most drug crimes — will flee and endanger the community if released.  That exception has now swallowed the rule, becoming a built-in bias for incarceration that feeds the federal system’s colossal detention rates and stark racial disparities....

As Judge James Carr of the U.S. District Court for the Northern District of Ohio has observed, “Mass detention creates mass incarceration.”  Instead of maintaining a default position that most people awaiting trial should be jailed, Mr. Garland should enact policy changes that limit pretrial jailing to cases where it is genuinely necessary, eliminate all financial considerations from the detention calculus and aim to reduce racial disparities in pretrial detention.

These common-sense changes would mark the true beginning of a progressive-prosecutor movement at the federal level. Prosecutors fostered the culture of detention. Now they must help dismantle it.

February 24, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

February 23, 2021

Lots of good criminal justice reads from CCRC, Law360, and Reason

A full in-box and some surfing produced this fulsome reading list from a few sources chock full of pieces I recommend checking out:

From CCRC, "After a haul of record relief reforms in 2020, more states launch clean slate campaigns"

From CCRC, "Study: Texas diversion provides dramatic benefits for people facing their first felony

From CCRC, "A Plan to Restructure (and Revive) Pardoning After Trump"

From Law360, "Goodwin Wins Freedom For Cannabis Offender Serving Life"

From Law360, "Biden's Science Adviser Pick Could Advance Justice Reforms"

From Law360, "Public Defenders Speak Out About The Tolls Of COVID-19"

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

From Reason, "Biden Says Drug Users Shouldn't Be Jailed but Won't Do Anything To Stop It"

From Reason, "Trump's Messy Pardon Spree Left Too Many Behind. Biden Must Do Better."

February 23, 2021 in Recommended reading | Permalink | Comments (0)

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

February 23, 2021 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Tax Administration and Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated"

The title of this post is the title of this notable and timely new article authored by Leslie Book now available via SSRN.  (Among other virtues, this piece provides yet another example of how all areas of law have something to do with sentencing and corrections.)  Here is its abstract:

In the midst of a devastating pandemic that would sicken millions, kill hundreds of thousands, and cause widespread financial distress, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. CARES provided for the IRS to deliver up to $1,200 for adults and $500 for dependent children.  It was ostensibly structured as a refundable credit to be claimed on a 2020 tax return, but with a twist.  The statute authorized the IRS to pay it in advance, even to those who did not have a tax return filing obligation, and to do so as “rapidly as possible.”  While there were some problems, the IRS generally did remarkably well, and within six months it had delivered about 160 million payments totaling over $270 billion.

This Essay addresses one of those exceptional problems: it involves the IRS’s unexplained change in position on the eligibility of those incarcerated in our nation’s federal, state, and local prisons and jails.  At first, the incarcerated, just like other Americans suffering the effects of the pandemic, received the money that they were entitled to receive under the CARES legislation.  That changed.  In early May of 2020, the IRS announced on its web page that those who were incarcerated were not eligible for immediate cash benefits, worked with prison officials to claw back payments it had made, and stopped in their tracks hundreds of thousands of payments that it had not yet made.  By October, the government faced a complete rebuke of its policy in Scholl v Mnuchin, a class action suit that held that the IRS’s actions were contrary to law and arbitrary and capricious under the Administrative Procedure Act.

By looking at the IRS actions that led to Scholl v Mnuchin, this Essay explores the relationship of tax administration and racial justice.  It reveals how tax administration can normalize and reinforce patterns of racial inequality through the presence of racialized administrative burdens.  Finally, this Essay then considers how the IRS’s actions with respect to restricting payments to the incarcerated population can offer lessons to minimize the risk that future IRS actions will harm people of color, especially given the IRS’s role in delivering benefits.

February 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

February 22, 2021

"COVID-19 Cases Among Employees of U.S. Federal and State Prisons"

The title of this post is the title of this notabel new research published in the American Journal of Preventive Medicine.  Here is its abstract:

Introduction

Prior research has found coronavirus disease 2019 (COVID-19) cases to be disproportionately prevalent among U.S. prisoners.  Like prisoners, prison staff experience ventilation and social distancing hazards and may have limited access to testing, paid sick leave, personal protective equipment, and other workplace protections.  Yet, systematic case surveillance among prison staff remains unexplored.  The objective of this study is to document trends in COVID-19 cases among U.S. correctional staff relative to prisoners and the U.S. population.

Methods

Reports of COVID-19 cases among prisoners and staff were collected from state Departments of Corrections and the federal Bureau of Prisons from March 31, 2020 to November 4, 2020. In November 2020, this series of aggregated case records was linked to population estimates to calculate COVID-19 period prevalence among prison staff and residents with comparison to U.S. population trends.

Results

Within the prison environment, COVID-19 case burden was initially higher among staff than prisoners in 89% of jurisdictions.  Case prevalence escalated more quickly among prisoners but has remained persistently high among staff. By November 4, 2020, COVID-19 was 3.2 times more prevalent among prison staff than the U.S. population.

Conclusions

Prison staff experienced substantially higher COVID-19 case prevalence than the U.S. population overall.  Across prison staff and resident populations, cases were rapidly rising in November 2020, indicating poor outbreak containment within the prison environment.  An Emergency Temporary Standard, issued by federal and state Occupational Safety and Health Administrations, and priority vaccination are urgently needed to reduce COVID-19 occupational risk.  Reduced occupational transmission of COVID-19 will benefit workers, incarcerated people, and community members alike.

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

Notable quotables on criminal justice issues from AG-nominee Merrick Garland during his confirmation hearing

This new Reuters piece provides some choice quotes from U.S. Attorney General Nominee Garland on criminal justice policies during his Senate confirmation hearing today. I sense advocates of criminal justice reform will be pleased with these comments:

DEATH PENALTY

Garland told Congress he used to support the death penalty, including the execution of Oklahoma City bomber Timothy McVeigh, a case he prosecuted.  He said his views have evolved due to concerns about executing innocent people and its disparate impact on communities of color.

“I have had a great pause about the death penalty.  I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise,” he said. “The data is clear that it has an enormously disparate impact on Black Americans and members of communities of color.”

MARIJUANA PROSECUTIONS

Garland revealed he will not seek to prioritize marijuana possession prosecutions. “We can focus our attention on violent crimes and other crimes that put great danger in our society, and not allocate our resources to some things like marijuana possession.”

ON SENTENCING REFORM

“We should do as, as President Biden has suggested, seek the elimination of mandatory minimum.  So that we once again give authority to district judges and trial judges to make determinations based on all of the sentencing factors that judges normally apply.”

“We don’t have to seek highest possible offense with the highest possible sentence. ... Legislatively, we should look at equalizing ... what’s known as the crack powder ratio, which has had an enormously disproportionate impact on communities of color.”

This CNN article about the hearings suggests that Garland is on his way to being confirmed as the next U.S. Attorney General, and it will be interesting to see just how he goes about operationalizing these sentiments though DOJ's work and through advocacy to Congress.

February 22, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)

"Teaching Drugs: Incorporating Drug Policy into Law School Curriculum (2020-21 Curriculum Survey Update)"

The title of this post is the title of this great new updated report authored by multiple researchers with The Ohio State University's Drug Enforcement and Policy Center (DEPC) now available via SSRN.  This document is an updated version of a great prior report with the same title, and both reports are the product of the collective great work of many DEPC folks with input from many legal academics and staff. Here is the abstract for this latest version of this report:

Despite the significant impact of laws and policies surrounding controlled substances, few classes in the typical law school curriculum focus on either basic legal doctrines or broader scholarship in this field.  This gap in law school curricula is especially problematic given the shifts in the landscapes of legalized cannabis and hemp, as well as the range of legal and policy responses to the recent opioid crisis.  To continue our efforts to better understand how law schools currently approach these issues and to identify how drug policy and law could be better incorporated into law school curricula, we conducted a third survey of all accredited law schools in the U.S.  The 2020-21 survey followed two previous annual surveys and a workshop of legal scholars who work in this space.  The surveys and 2019 workshop were designed to identify law school courses currently taught and the primary obstacles to teaching this subject matter.  The results show that the vast majority of law schools do not teach courses touching on drugs or the evolving legal structures around cannabis, and this is true even for law schools located in states with legalized cannabis markets.

February 22, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (0)

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

February 22, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

February 21, 2021

Valuable accountings of crime trends present and past

My morning surfing led me to two notable new pieces with oceans of interesting information about crime and all the debatbale accounts for why it has gone up and down in the United States. Here are links and short excerpts from lengthy pieces which both merit a full read:

"What Drove the Historically Large Murder Spike in 2020?  The pandemic, police violence, and more guns all contributed to an unprecedented rise in murders across the United States" by Rob Arthur and Jeff Asher at The Intercpt.  An excerpt:

Any explanation for the national spike in homicides in 2020 needs to account for why most U.S. cities saw an increase, and the available evidence suggests that we should avoid simplistic or local explanations to explain what was almost certainly a complex national phenomena. Murders were up at least 15 percent through September in cities of every population group, according to the FBI’s data, and the change in murders was larger in towns with under 10,000 people (up 31 percent) than in cities with over 1 million people (up 29 percent). Murders rose dramatically in big cities like New York and Chicago, but smaller cities like Lubbock, Texas, and Shreveport, Louisiana, also recorded their highest murder counts in decades.

The available evidence suggests that we should avoid simplistic or local explanations to explain what was almost certainly a complex national phenomena.

Identifying the change in the murder rate is relatively easy compared to figuring out why the increase occurred. The data suggests that 2020’s murder increase can best be thought about as three separate rises.  A deeper dive into where and when murder increased shows a number of contributing factors: a challenge to police legitimacy and the strain of the pandemic, exacerbated by a sudden surge in the use of firearms in several cities.

"The Great American Mystery Story: Why Did Crime Decline?  To stop the COVID crime wave, we must understand why crime declines: 25 explanations for the Great American Crime Decline and what it means for today" by John Roman at Substack:

25 Reasons Why Crime Declined in America

So now, finally, we have arrived at the point where I can describe the most important theories about why crime declined.  This list is a little bit of a labor of love in that I have been curating it for twenty years.  I didn’t offer any judgments about the relative merits of the Zimring claim that changes in police practices explain the crime decline or the Levitt claim that it is the sheer number of police that matter.  In fact, I think both theories have substantial merit.

And so to do all of the other items on this list.  For each, I have provided a link to a paper that rigorously makes a compelling claim for the idea.  In fact, having a list of 25 explanations for the crime decline was completely arbitrary — I could have added at least a dozen more (and in fact my list here is more like 35 theories since I have grouped some similar ideas and snuck in a few extra).

So, without further ado, here is the list.  The first bunch of causal mechanisms for the crime decline has been explicitly linked by researchers to the crime decline and the link makes that connection.  The rest of the ideas on the list are mechanisms that mediate criminal behavior.  I am linking these mechanisms to the crime decline because changes in the extensive margin (how many people experience the proposed mechanism) are large and inclusive and changes and change at the same time as the crime decline.  I add a sentence for the mechanisms that aren’t obvious, but each is worthy of a book-length treatment.  Graduate students: all of these are testable hypotheses.  Have at it.

As an appetite whetter from this second piece, consider how the list of 25 explanations closes:

20.  Widespread use of medication (Ritalin, anti-anxiety, anti-psychotic, anti-depressant)

21.  In-home entertainment (internet, video games, pornography, cable)

22.  Under-reporting as crime moves online

23.  Less cash in circulation

24.  Obesity and disability

25.  Air conditioning.

February 21, 2021 in National and State Crime Data | Permalink | Comments (0)

"Sex Offenders and the Free Exercise of Religion"

The title of this post is the title of this notable new article authored by Christopher Lund now available via SSRN. Here is its abstract:

In a variety of ways, sex offenders in the United States find themselves in a difficult position.  One of the lesser-known ways relates to the free exercise of religion.  Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present).  Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether.  And this hardship has a bit of irony in it too.  Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.

This simple problem has real scope — tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life.  Moreover, these prohibitions are often vague and overbroad — and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them.  But this ends up creating a kind of licensing scheme, whereby low-level government officials make — on their own, without any formal criteria — ad-hoc and practically unreviewable decisions about who gets to go to church and under what conditions.  Risks of selective enforcement, discrimination, and abuse are obvious.

These rules have come into being as if concerns about the free exercise of religion have no weight at all.  But this is not the case.  And, in fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws.  Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance.  There are probably some people who pose such a threat to children that they should be kept away from churches.  Courts will have to answer tricky questions — who should be barred, who should decide who is barred, and on what criteria? — that require nuanced and elaborate answers.  Yet informed by analogies from other areas of law (like freedom of speech) where courts have wrestled with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.

February 21, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (1)