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March 5, 2021

Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?

A helpful colleague made sure I found some time in a busy week to think about the Sixth Circuit's panel decision on Wednesday in US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here). The Riccardi decision is the latest in a series of relatively new circuit rulings in which courts are declaring it improper and impermissible for the commentary to the federal sentencing guidelines to be applied in ways that expand the meaning of the actual guidelines (prior Sixth Circuit en banc example flagged here).

Riccardi seems like an especially big deal because it is focused on the commentary to the fraud guidelines, USSG § 2B1.1, which has an extensive accounting of how courts should account for the key factor of "loss" in the main guideline.  Here is how panel's majority opinion gets started: 

Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000.  The Sentencing Guidelines directed the district court to increase Riccardi’s guidelines range based on the amount of the “loss.” U.S.S.G. § 2B1.1(b)(1).  Yet § 2B1.1 does not define the word “loss.”  A search for its ordinary meaning might produce definitions such as “[t]he amount of something lost” or “[t]he harm or suffering caused by losing or being lost.”  American Heritage Dictionary of the English Language 1063 (3d ed. 1992).  Perhaps, then, the word is ambiguous on the margins.  Does it, for example, cover only financial harms or emotional ones too?  But one definition of “loss” that you will not find in any dictionary is the rule that the district court used for Riccardi’s stolen gift cards: a $500 minimum loss amount for each gift card no matter its actual value or the victim’s actual harm (which, for Riccardi, amounted to a total loss amount of $752,500).

Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission’s commentary to § 2B1.1.  The commentary instructs that the loss “shall be not less than $500” for each “unauthorized access device,” a phrase that Riccardi concedes covers stolen gift cards. U.S.S.G. § 2B1.1 cmt. n.3(F)(i).  But guidelines commentary may only interpret, not add to, the guidelines themselves.  United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam).  And even if there is some ambiguity in § 2B1.1’s use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity” that exists. Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019).  So this bright-line rule cannot be considered a reasonable interpretation of — as opposed to an improper expansion beyond — § 2B1.1’s text.  We thus reverse Riccardi’s sentence and remand for resentencing without the use of the commentary’s automatic $500 minimum loss amount for every gift card.

Though the part of the loss commentary found to be an "improper expansion" of the 2B1.1 guideline in Riccardi might seem like a quirky example, I suspect a good many fraud cases involve commentary that could be considered an "improper expansion" of the guideline term "loss."  For example, the commentary states that "loss is the greater of actual loss or intended loss," but can see a good argument that "intended loss" — which is loss that did not actually happen, but was part of the design of an offense — is not a reasonable interpretation of "loss."  Similarly, the commentary states sentencing judges "shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined." I feel pretty confident that "gain" is not really an interpretation of "loss."

Critically, the fraud guideline is not the only one important part of the federal sentencing guideline with an intricate set of commentary instructions that might be challenged as full of "improper expansions."  I sense a growing number of litigants and courts are starting to hone on potentially problematical guideline commentary and that some variation of this issue with be getting to the US Supreme Court before too long.  In the meantime, defense attorneys would be wise to challenge (and preserve arguments around) any application of guideline commentary that even might be viewed as "expansionary."

March 5, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi"

The title of this post is the title of this notable new paper authored by Frank O. Bowman III now available via SSRN. Here is its abstract:

In this contribution to the North Carolina Law Review's symposium on the twentieth anniversary of the Supreme Court's decision in Apprendi v. New Jersey, I offer a valedictory reflection on my own intellectual journey with sentencing reform and in particular with the Federal Sentencing Guidelines.

The account begins with my first encounters with the Guidelines when I was a zealous Assistant U.S Attorney, continues through my transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and foreshadows a conclusion with me in the role of disillusioned curmudgeon muttering about might-have-beens as I shuffle towards my dotage.

The utility, if any, of these musings will lie partly in the fact that I have been up to my neck in Guidelines minutia for thirty years, but mostly in the fact that I have felt obliged to change my mind as events and experience challenged my previous convictions.  Some reconstruction of the evolution of my thinking as the Guidelines arose, failed, and died, but then achieved an enduring afterlife as law that is not really law at all, may be of modest use when the time finally comes to build something truly new.

March 5, 2021 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

March 4, 2021

New Sentencing Project fact sheet provides updated data on private prison populations in US

The Sentencing Project has this new fact sheet titled simply "Private Prisons in the United States."  The document has lots of data and helpful graphics in a short space, and here is how it gets started:

Private prisons in the United States incarcerated 115,954 people in 2019, representing 8% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 33% compared to an overall rise in the prison population of 3%.

However, the private prison population has declined 16% since reaching its peak in 2012 with 137,220.  Declines in private prisons’ use make these latest overall population numbers the lowest since 2006 when the population was 113,791.

States show significant variation in their use of private correctional facilities.  Indeed, Montana held 47% of its prison population in private facilities, while 19 states did not employ any for-profit prisons. Data compiled by the Bureau of Justice Statistics (BJS) and interviews with corrections officials find that in 2019, 32 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), LaSalle Corrections, and Management and Training Corporation.

Twenty-one states with private prison contracts incarcerate more than 500 people in for-profit prisons. Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 12,516.

Since 2000, the number of people in private prisons has increased 33%, compared to an overall rise in the prison population of 3.5%. In eight states the private prison population has more than doubled during this time period: Arizona (480%), Indiana (313%), Ohio (253%), North Dakota (221%), Florida (205%), Montana (125%), Tennessee (118%), and Georgia (110%).

March 4, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"The Color of Collateral Damage: The Mutilating Impact of Collateral Consequences on the Black Community and the Myth of Informed Consent"

The title of this post is the title of this new paper authored by Trevor Shoels and recently made available on SSRN.  Here is its abstract:

The rights of the convicted have long been constrained by the relentless imposition of collateral consequences of criminal convictions.  More specifically, collateral consequences of drug convictions have a disparate impact on the Black community due to over-policing of Black neighborhoods.  Consequently, Black people are over-prosecuted, leading to more convictions and ultimately making them the primary victim of collateral consequences. Certain collateral consequences almost exclusively affect Black people and are strikingly similar to Jim Crow laws.  Similar to Jim Crow laws, these collateral consequences almost exclusively prohibit the Black convicted from public housing, welfare assistance, financial aid, the ability to vote, the ability to receive certain jobs and licenses, and more.

Collateral consequences are considered categorically different from forms of direct punishment like fines, jail time, and probation.  Due to this deceptive distinction, there is no notice requirement for collateral consequences at the plea stage.  Thus, many defendants will accept deals for guilty pleas, completely unaware that collateral consequences will affect them for what could be the rest of their lives.  In regard to this mockery of justice, this Article implores the argument that the informed consent requirement, as it stands, is a myth.

This article discusses the constitutional implications surrounding the prejudicial imposition of collateral consequences and the blurred distinction made between collateral consequences and direct punishment.  In doing so, this article proposes (1) Congress employ a legislative overhaul to remove prejudicial collateral consequences (2) Supreme Court change the standard of judicial review from the rational basis test to strict scrutiny and extend their holding in Padilla v. Kentucky to apply to all collateral consequences, and (3) Federal and State legislators enact legislation aimed at placing procedural safeguards — like a notice requirement — at the plea stage.

March 4, 2021 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (0)

Lots of SCOTUS talk and debate over the "categorial approach" and ACCA proof burdens in immigration decision

The Supreme Court this morning handed down a 5-3 ruling in Pereida v, Wilkenson, No. 19-438 (S. Ct. Mar. 4, 2021) (available here), in which the majority holds that, under the Immigration and Nationality Act (INA), a person subject to removal seeking discretionary relief must prove a prior conviction is not a "disqualifying criminal offense." Federal sentencing fans may already sense where this is going because so much of federal sentencing law, particularly the Armed Career Criminal Act (ACCA), is concerned a lot about whether a prior conviction qualifies a defendant for certain sentencing enhancements. In his opinion for the majority, Justice Gorsuch talks a good deal about these matters, and here are a few passages that caught my eye:

We have described the modified categorical approach as requiring courts to “review . . . record materials” to determine which of the offenses in a divisible statute the defendant was convicted of committing.  Mathis, 579 U. S., at ___ (slip op., at 16).  We have acknowledged that this process calls on courts to consider “extra-statutory materials” to “discover” the defendant’s crime of conviction.  Descamps v. United States, 570 U.S. 254, 263 (2013).  We have observed that these “materials will not in every case speak plainly,” and that any lingering ambiguity about them can mean the government will fail to carry its burden of proof in a criminal case.  Mathis, 579 U.S., at ___ (slip op., at 18) (citing Shepard v. United States, 544 U.S. 13, 21 (2005)).  And we have remarked that “the fact of a prior conviction” supplies an unusual and “arguable” exception to the Sixth Amendment rule in criminal cases that “any fact that increases the penalty for a crime” must be proved to a jury rather than a judge. Apprendi v. New Jersey, 530 U.S. 466, 489, 490 (2000).

Really, this Court has never doubted that the who, what, when, and where of a conviction — and the very existence of a conviction in the first place — pose questions of fact.  Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so....

In the criminal context, this Court has said that judges seeking to ascertain the defendant’s crime of conviction should refer only to a “limited” set of judicial records.  Shepard, 544 U.S., at 20–23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant’s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding should be as confined as possible. Id., at 25–26; see also Apprendi, 530 U. S., at 487–490 (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)). But Sixth Amendment concerns are not present in the immigration context

Justice Breyer's dissent in this case also speaks on the "categorial approach" and ACCA jurisprudence at some length.   I will leave it to others to let me know if there are particularly important passages in the dissent (or in the majority) that sentencing fans ought to consider at greater length.

March 4, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Making the case for repealing AEDPA ... and a reminder that "Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions"

I have lately been giving thought to the need for Congress to give more attention to the need to reform the ever-ugly and ever-litigated Armed Career Criminal Act (ACCA). But Radley Balko has this new Washington Post piece, headlined "It’s time to repeal the worst criminal justice law of the past 30 years," effectively reminding us that another lousy and clumsy piece of federal legislation (also starting with an A)  should be getting a lot more attention.  Here are excerpts, ending with a useful reminder of an important bit of history:

Under our system, when a state violates the constitutional protections of a fair trial, the federal courts are required to intervene.  The right to judicial review of an unlawful detention, also known as the writ of habeas corpus, is enshrined in the Constitution and dates back to 13th-century England.

But in 1996 Congress took a chisel to habeas corpus with the Antiterrorism and Effective Death Penalty Act (AEDPA).  Attorneys who represent people challenging their convictions, such as Mississippi’s Humphreys McGee, say the AEDPA and the Supreme Court rulings that followed have suffocated federal review. “It’s been a 25-year thicket of real through-the-looking-glass s---," McGee says. And the law’s repeal or reform is long overdue.

The AEDPA came several years after a spike in crime that began in the early 1980s and peaked around 1991.  By the time the AEDPA became law, crime rates were in the first few years of a 20-year free fall.  But the two major parties were in a frenzied competition over who could look toughest on suspected criminals.  The bill also came shortly after the Newt Gingrich-led “Republican Revolution,” a movement built on law-and-order rhetoric and promises to devolve more power to the states.

At the same time, though, early DNA testing had begun to show the criminal justice system was far more fallible than commonly thought.  The technology was young — by the end of 1995, DNA had exonerated just 37 people.  But even then, those cases raised questions about the reliability of forensic evidence and eyewitness testimony, and the behavior of police and prosecutors . Innocence Projects sprang up around the country, and law schools established clinics to seek out other bad cases.  According to the National Registry of Exonerations, in the 213 years before the first DNA exoneration in 1989, the United States saw a total of 418 exonerations.  In the 32 years since, there have been 2,733.  Yet at the same time DNA should have forced us to confront the shortcomings of the criminal justice system, the AEDPA all but slammed the federal courthouse door closed on the wrongly convicted.

The AEDPA’s most destructive provision is arguably its deference to state courts.  Previously, a federal court could review constitutional claims without considering state courts’ previous rulings.  The AEDPA requires federal judges to defer to state courts even when they believe those courts are wrong. In fact, the Supreme Court has essentially ruled that, to be overturned, a state court ruling must be so unreasonable that its judges are unfit to sit on the bench.

Even on the rare occasion a federal court might make that finding, the AEDPA also imposes a gantlet of deadlines and procedural barriers.  The law is so complicated, even seasoned post-conviction attorneys say they’re often flummoxed by it.  This, they say, is by design. “The goal of AEDPA is to avoid adjudicating these cases on their merits,” says McGee. “The law is loaded with tripwires that let federal judges throw out claims without bothering to consider them.”...

“AEDPA abdicated constitutional rights to the states just as states were requiring more deference to their lower courts,” says Richard Bourke, a post-conviction attorney in New Orleans.  “So you get this quantum of deference that grows exponentially at each level, to the point where constitutional rights are now mostly in the hands of elected, low-level circuit court judges.”

And there’s one additional layer of iniquity: Except in death penalty cases, indigent defendants lose their right to an attorney once in post-conviction.  So just when the wrongly convicted are most likely to discover evidence that could free them, they not only face a procedural minefield even a seasoned lawyer would struggle to navigate, nearly all of them also face it alone.  Consequently, for every AEDPA injustice exposed by post-conviction lawyers, countless others may never be known.

In a series of columns over the next several months, I’ll look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it.  The good news is that much of this can be fixed.  Congress could repeal or reform the AEDPA tomorrow.  And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions.  The then-senator warned of dire consequences if those provisions passed. History has proved him right.

March 4, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

March 3, 2021

US Sentencing Commission issues big new report on "Federal Armed Career Criminals: Prevalence, Patterns, and Pathways"

The US Sentencing Commission has just released this big report providing "information on offenders sentenced under the Armed Career Criminal Act, including an overview of the Act and its implementation in the federal sentencing guidelines. The report also presents data on offender and offense characteristics, criminal histories, and recidivism of armed career criminals."  Here are the "Key Findings" appearing in the first part of the report:

Key Findings
• Armed career criminals consistently comprise a small portion of the federal criminal caseload, representing less than one percent of the federal criminal caseload.  During the ten-year study period, the number of armed career criminals decreased by almost half, from 590 in fiscal year 2010 to 312 in fiscal year 2019.
• Armed career criminals receive substantial sentences.  Offenders who were subject to the ACCA’s 15-year mandatory minimum penalty at sentencing received an average sentence of 206 months in fiscal year 2019.  Offenders who were relieved of the mandatory minimum for providing substantial assistance to the government received significantly shorter sentences, an average of 116 months in fiscal year 2019.
• Armed career criminals have extensive criminal histories. Even prior to application of the armed career criminal guideline, 90.4 percent of armed career criminals qualified for the three most serious Criminal History Categories under the guidelines, and almost half (49.4%) qualified for Criminal History Category VI, the most serious category under the guidelines. 
• The overwhelming majority of armed career criminals had prior convictions for violent offenses. In fiscal year 2019, 83.7 percent of armed career criminals had prior convictions for violent offenses, including 57.7 percent who had three or more such convictions.  Despite the predominance of violence in their criminal history, the most common prior conviction for armed career criminals was for public order offenses, with 85.3 percent having at least one such prior conviction.
• More than half (59.0%) of armed career criminals released into the community between 2009 and 2011 were rearrested within an eight-year follow-up period. When armed career criminals recidivated, their median time to rearrest was 16 months and the most serious common new offense was assault (28.2%).
• Recidivism rates of armed career criminals varied depending on whether they had prior convictions for violent offenses and the number of such prior convictions.
      ◦ Nearly two-thirds (62.5%) of armed career criminals with prior violent convictions and no prior drug trafficking convictions, and more than half (55.0%) of armed career criminals with both prior violent and drug trafficking convictions were rearrested within the eight-year follow-up period.  In comparison, only 36.4 percent of armed career criminals with prior drug trafficking convictions and no prior violent convictions were rearrested during the study period, but there were only 12 such offenders.
     ◦ Furthermore, 61.7 percent of armed career criminals with three or more prior violent convictions were rearrested during the eight-year follow-up period compared to 48.9 percent of armed career criminals with one or two prior violent convictions

March 3, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Effective review of research on the effectiveness of indigent defense systems

I recently tripped across this interesting document authored by Maggie Bailey for the UNC School of Government Criminal Justice Innovation Lab titled "Empirical Research on the Effectiveness of Indigent Defense Delivery Systems."  Here are parts of the introduction and conclusion of this notable research review:

While the Constitution provides indigent defendants with the right to counsel, states have flexibility in determining how to administer that right. States use a variety of approaches for providing indigent defense services, including employing public defenders, appointing private attorneys on a case-by-case basis, and contracting with private attorneys (collectively, “delivery systems”), often using a combination of these approaches to handle caseloads (Cohen 2012, 30).  In this paper, I summarize seven empirical studies of the effectiveness of different types of indigent defense delivery systems.  These analyses compare case outcomes, collectively suggesting that appointed counsel achieve less favorable outcomes for indigent defendants, and discuss some explanatory factors for gaps in attorney performance across the different delivery systems.  A summary table of each study’s findings is provided at the end of the document....

Taken together, the studies discussed here suggest that, when compared to public defenders, appointed counsel generally achieve less favorable outcomes for their defendants. However, the severity of this performance gap varies across studies.  Scholars offer a number of a number of variables that may explain some of these differences, including low wages, lack of experience, variable caseloads, lack of resources, and law school quality.

There are opportunities for more research, including repetition of previous studies, to provide a comprehensive understanding of the pros and cons of these systems.  For example, while the studies in this paper discuss variables like wages and attorney experience, there are not consistent findings to parse out the extent to which these variables impact attorney performance and case outcomes.  The availability of sufficient, high-quality data appears to be a barrier to empirical research.  Additionally, while focusing on case outcomes is a critical part of measuring attorney performance, attorney quality is a multifaceted concept, and more research can contribute to identifying criteria for performance measurement.  Finally, it is worth examining and comparing the administrative structures of indigent defense systems to understand how elements such as qualification standards, funding, support services, and level of oversight influence outcomes for different delivery systems, although access to data may complicate this level of analysis.  Further research can help determine reforms that might enhance these systems to ensure the provision of equitable, high-quality representation for indigent defendants.

March 3, 2021 in Who Sentences | Permalink | Comments (1)

More guns = more gun crimes in 2020?

The question in the title of this post is prompted by this new NPR article headlined "Did Record Gun Sales Cause A Spike In Gun Crime?  Researchers Say It's Complicated."  Here is an excerpt (with links from original):

"It's a real challenge to try and disentangle the role of any one single potential cause," says Julia Schleimer, with the Violence Prevention Research Program at the University of California, Davis. "It's particularly challenging during the pandemic," with variables such as mass unemployment and closed schools.

Nevertheless, Schleimer and her colleagues are trying to parse out the effect of all those new guns. Their study of the initial boom in purchases — an estimated 2.1 million extra sales from March to May — concluded there was an association between short-term surges in sales and shootings.

But as the year progressed, Schleimer says that statistical relationship faded.  "We know that there's a strong link between more guns and more gun violence," she says, "but during this pandemic and in our analysis here, that link is less clear."  Setting aside the question of sales, though, there does seem to be evidence that guns were more present in daily life last year — especially during crimes.

"All of a sudden, the number of assaults with guns spiked a lot," says Rob Arthur, a data scientist and independent journalist. In a recent article for the Intercept, he pointed to an increase in the ratio of violent crimes that involved guns to those that didn't.  "That suggested to me that there was some kind of substitution going on," Arthur says. "People who were committing assaults had access to guns more in 2020 than they did before. And so they they were essentially getting upgraded to a worse crime, assaulting someone with a gun, whereas before they might have done it without a gun."

It may be a leap, though, to assume those shooters were part of last year's wave of gun buyers. Mandatory background checks bar felons and other disqualified people from buying guns in stores, and past research shows most guns used in crimes are not newly purchased.  But established patterns may not apply to 2020.  Guns were bought by a much broader cross-section of Americans last year, and the firearms industry estimates 40% were first-time buyers.

"Black gun ownership is way up, Asian gun ownership is way up, Hispanic gun ownership is way up," says Cam Edwards, the editor of BearingArms.com. "So we've seen a democratization...  where Americans who never before would have considered exercising that right have now embraced it."

For some, this "democratization" of gun sales is a matter of exercising a civil right. But it's also likely that the broadening of firearm ownership was driven by people who simply decided, during a turbulent year, that they needed a gun.  Whatever the reasons, it means 8 million new guns are now in the possession of people who potentially have less experience handling them.

March 3, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

"Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions"

The title of this post is the title of this notable new article authored by Michael Sousa ow available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

March 3, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

March 2, 2021

En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal "violent crime"

Great scottI generally do not closely follow lower federal court rulings about what state convictions qualify as predicates for sentencing enhancement under the Armed Career Criminal Act ("ACCA") or the career offender sentencing guidelines. I have a hard time just keeping up with the many Supreme Court ACCA cases, and I have previously suggested in this post a few years ago that modern ACCA jurisprudence must reside as some level of hell in Dante's Inferno because this caselaw is so dang inscrutable. 

But a helpful reader alerted me to a new en banc Second Circuit decision today in US v. Scott, No. 18-163-cr (2d Cir. Mar. 2, 2021) (available here), which seems like a useful reminder of how nuts this jurisprudence can be.  Here is how the majority opinion in Scott gets started:

Defendant-appellee Gerald Scott is a violent criminal, who has repeatedly threatened, and on two occasions taken, human life.  The killings were undoubtedly brutal: Scott shot one of his victims in the head at point-blank range; he stabbed the other to death. For these killings, Scott stands twice convicted in New York State of first-degree manslaughter under N.Y. Penal Law § 125.20(1), a homicide crime second only to murder in its severity.   At issue on this appeal is whether Scott’s manslaughter convictions are for violent crimes. An affirmative answer might appear obvious to a man on the street aware of Scott’s conduct.  But the laws relevant here — the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), and the Career Offender Sentencing Guideline, see U.S.S.G. § 4B1.2(a) — do not identify violent crimes by looking to what a defendant actually did. Rather, they look to the minimum he might have done and still been convicted.  This inquiry focuses on a crime’s elements, asking whether they categorically require a defendant’s use of physical force, specifically violent physical force.  See Curtis Johnson v. United States, 559 U.S. 133, 140, 144 (2010) (defining physical force required by ACCA).  Applying that standard here, we conclude that first-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.

The occasion for our ruling is the United States’ appeal from an amended judgment of conviction entered on January 12, 2018, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), which resentenced Scott to time served (then totaling approximately 11 years, 3 months) for attempted Hobbs Act robbery and related firearms crimes. Resentencing followed the district court’s grant of Scott’s 28 U.S.C. § 2255 motion to vacate his original 22-year sentence.  See United States v. Scott, No. 06 CR 988- LTS, 2017 WL 2414796, at *3 (S.D.N.Y. June 2, 2017).  The district court concluded that it had mistakenly relied on ACCA and the Career Offender Guideline in imposing Scott’s initial sentence.  It reasoned that Scott’s two prior convictions for first-degree manslaughter did not qualify as predicate violent crimes because “first degree manslaughter can be committed in New York State by omission and thus without using force.”  Id. at *2 (emphasis added).  A divided panel of this court agreed, with the majority analogizing omission to “complete inaction,” and concluding therefrom that the crime could be committed without the use of force.  See United States v. Scott, 954 F.3d 74, 78 (2d Cir. 2020) (holding first-degree manslaughter “not a predicate crime of violence because it can be committed by complete inaction and therefore without the use of force”).

After rehearing the case en banc, we reject this reasoning, which, carried to its logical — or illogical — conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person’s death by omission when the defendant’s specific intent is to kill, see N.Y. Penal Law § 125.25(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter).  We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.

Disconcertedly, the majority needed 50 more pages to explain why first-degree manslaughter in New York qualifies as a federal "violent crime," and then concurring and dissenting opinions needed 70 more pages to debate a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.  With the rocky jurisprudence of this case and the horrors of so many others, I would love to time warp back to the drafting of ACCA and urge a whole new approach to federal sentencing.  

March 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

"Association between county jail incarceration and cause-specific county mortality in the USA, 1987–2017: a retrospective, longitudinal study"

Concerns about public safety and justice have long been central to discussions and debate over modern mass incarceration in the United States.  But, especially as a result of the COVID pandemic, we are seeing more and more consideration of incarceration as a public health issue.  Consequently, I was really struck by this new research published online at The Lancet Public Health which analyzes mortality associated with jails over three decades (and has the title that serves as the title of this post).  Here is the "Summary" from this paper:

Background

Mass incarceration has collateral consequences for community health, which are reflected in county-level health indicators, including county mortality rates.  County jail incarceration rates are associated with all-cause mortality rates in the USA. We assessed the causes of death that drive the relationship between county-level jail incarceration and mortality.

Methods

In this retrospective, longitudinal study, we assessed the association between county-level jail incarceration rates and county-level cause-specific mortality using county jail incarceration data (1987–2017) for 1094 counties in the USA obtained from the Vera Institute of Justice and cause-specific mortality data for individuals younger than 75 years in the total county population (1988–2018) obtained from the US National Vital Statistics System.  We fitted quasi-Poisson models for nine common causes of death (cerebrovascular disease, chronic lower respiratory disease, diabetes, heart disease, infectious disease, malignant neoplasm, substance use, suicide, and unintentional injury) with county fixed effects, controlling for all unmeasured stable county characteristics and measured time-varying confounders (county median age, county poverty rate, county percentage of Black residents, county crime rate, county unemployment rate, and state incarceration rate).  We lagged county jail incarceration rates by 1 year to assess the short-term, by 5 years to assess the medium-term, and by 10 years to assess the long-term associations of jail incarceration with premature mortality.

Findings

A 1 per 1000 within-county increase in jail incarceration rate was associated with a 6·5% increase in mortality from infectious diseases (risk ratio 1·065, 95% CI 1·061–1·070), a 4·9% increase in mortality from chronic lower respiratory disease (1·049, 1·045–1·052), a 2·6% increase in mortality induced from substance use (1·026, 1·020–1·032), a 2·5% increase in suicide mortality (1·025, 1·020–1·029), and smaller increases in mortality from heart disease (1·021, 1·019–1·023), unintentional injury (1·015, 1·011–1·018), malignant neoplasm (1·014, 1·013–1·016), diabetes (1·013, 1·009–1·018), and cerebrovascular disease (1·010, 1·007–1·013) after 1 year.  Associations between jail incarceration and cause-specific mortality rates weakened as time lags increased, but to a greater extent for causes of death with generally shorter latency periods (infectious disease and suicide) than for those with generally longer latency periods (heart disease, malignant neoplasm, and cerebrovascular disease).

Interpretation

Jail incarceration rates are potential drivers of many causes of death in US counties.  Jail incarceration can be harmful not only to the health of individuals who are incarcerated, but also to public health more broadly. Our findings suggest important points of intervention, including disinvestment from carceral systems and investment in social and public health services, such as community-based treatment of substance-use disorders.

March 2, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Will NJ Gov veto a bill to repeal mandatory minimums for certain non-violent crimes because it repeals too many?

The question in the title of this post is prompted by this local story reporting on notable legislative developments our of New Jersey, headlined "Bill to end mandatory minimum sentences for certain crimes in N.J. now goes to Murphy’s desk."  Here are highlights of a story with so many interesting elements (with links from the original and my emphasis added):

A landmark criminal justice bill that would end mandatory minimum sentences for certain crimes in New Jersey, including non-violent drug offenses, is now heading to Gov. Phil Murphy’s desk after being passed by the state Assembly on Monday.

The bill (S2586/A4369) is the major reform recommended by the state’s Criminal Sentencing and Disposition Commission, which Murphy convened in 2018 due to the state having the worst disparity in the country for rates of incarceration between Black and white offenders.  The commission found that ending mandatory minimums for certain crimes would help to eliminate the disparity in the state’s criminal justice system, an initiative Murphy has championed as governor.

It is unclear if Murphy, a Democrat, will sign the bill into law.  “We’ll have further comment when we are ready to take action on the bill,” a spokesman for the governor said Monday afternoon.

As the bill was moving through the legislature, state Sen. Nicholas Sacco, D-Hudson, added an amendment to the bill to make the legislation also apply to official misconduct charges, which is sometimes used to prosecute politicians, police officers and other public workers.  The son of Sacco’s girlfriend is facing an official misconduct offense for allegedly submitting false timesheets in North Bergen, where Sacco is the mayor. 

Murphy has been publicly steadfast in that he does not support a bill that included ending mandatory sentences for official misconduct. “Let me say unequivocally, official misconduct was not on the list. I just want to say as clearly as I can, I do not support official misconduct being roped into this legislation,” the governor said in September.

But advocates continued to press lawmakers to move forward with the bill with or without the official misconduct charge included in it due to the number of people impacted, and the few number of people charged with official misconduct in recent years.

“Pass it for the thousands of people who will see earlier parole,” NJ Together, a non-partisan coalition of faith groups, wrote in a letter to lawmakers last week. “Pass it for the tens of thousands who will benefit in the future because they will not be subject to these unfair sentencing practices. Pass it for their families and for a more just criminal justice system here in New Jersey.”...

“This legislation, if signed by Gov. Murphy, will serve as a national model for criminal justice reform,” said Assemblyman Nick Chiaravalloti, D-Hudson. “This is an important social justice issue.”

The bill retroactively applies to inmates serving certain mandatory minimum sentences, including non-violent drug offenses, making more than 2,000 inmates immediately eligible for parole, if signed into law.  More than 80% of inmates serving mandatory minimum sentences for drug offenses are either Black or Hispanic, Joseph Krakora, the state’s top public defender, previously said.

Assemblyman John DiMaio, R-Warren, said he recognized the “social injustice issues that would be addressed by this bill,” but added, “I just do not understand where the social justice issue comes in” when removing official misconduct from the list of mandatory minimum sentences.  “Those sections that deal with the public trust, elected officials and public officials should not be in this bill,” he said before Monday’s vote.

However, NJ Together also found that official misconduct charges overwhelming are handed down to Black New Jerseyans.  It found that Black people in New Jersey are three and a half times as likely to spend time in state prison for official misconduct than others, according to an analysis of 36,000 prison records....

A spokesman for Murphy did not immediately respond when asked when the governor may make a decision.

I am instinctually against all (prison-time) manadtory minimums, which fundamentally shift sentencing powers from judges to prosecutors and make sentencing more opaque and often less consistent.  Mandatory minimums seem especially pernicious when applied to non-violent offenses where there can be a broad array of offense conduct and offender circumstances that a judge ought be able to consider in open court (and be subject to appeal).  Against that backdrop, from the get-go I think it is problematic (and telling) that reform-minded officials are so quick to oppose the repeal of the official misconduct NJ mandatory minimums (which seem pretty severe, though do include some waiver opportunities).

Even more important, and kudos for this reporting, racial disparity would seem to be a real concern in the application of this particular mandatory minimum in New Jersey, just as there tends to be disparity in the application of so many other mandatory minimums in so many jurisdictions.  If a primary goal of this whole bill is to reduce racially disparate sentencing laws, then repealing the misconduct minimums seems very much in service to a main goal of this bill.

FInally, and perhaps most important in service to criminal justice reform generally, any vision of the best reforms cannot and should not be the enemy of good reforms.  Today, tomorrow and every day until misguided sentencing laws are reformed and made retroactive, real people and their families are subject to real excessive prison time (and taxpayers are paying the economic and other  costs of excessive and unfair sentences).  If Gov Murphy were to veto this bill, he would be denying immediate relief and hope for more than 2,000 folks now serving problematic sentences in order to .... just preserve prosecutorial sentencing powers that they seem to be using unevenly and that should be in the hands of judges.

Prior related post:

March 2, 2021 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

March 1, 2021

"Why American Exceptionalism Abroad Requires Criminal Justice Reform"

The title of this post is the headline of this notable new commentary authored by Marc Levin published in The National Interest.  Here are excerpts:

Beyond eroding U.S. credibility as a beacon of human rights, diminishing confidence in America’s justice system, stemming in part from persistent racial disparities, threatens the unity that undergirds our fiscal strength as well.  Racial tensions drain U.S. economic vitality, and, considering that 43 percent of military members are racial or ethnic minorities, the dangers of white supremacy and the efforts to delegitimize our democracy and justice system are far from merely theoretical.

On the surface, national security and criminal justice policy may seem to be otherwise unrelated, but in fact, some of the major foreign policy lessons Americans have learned apply in great measure to justice reform.  Both require that policymakers are clear-eyed about the limits of government intervention, recognize the value of peace through strength and leverage the vitality and web of relationships that only a robust private sector and civil society can sustain....

Just as society must recognize the limits of military power to change civilizations that are centuries old, we must also confront limits to the efficacy of government-imposed punishment to change individuals.  The late criminologist Mark Kleiman captured this truth in his book When Brute Force Fails.  While penitentiaries in the United States originally stemmed from a Puritan inclination to “fix people,” prisons are often the worst environments to deliver treatment programs.  Reasons for this include separation from supportive family and employment, negative peer influences, depressing and even unhealthy conditions and frequent lockdowns that disrupt programming. Additionally, research shows that longer prison terms do not reduce recidivism.

Our overconfidence in punishment rests in part upon an incorrect presumption that criminal activity is entirely rational, even though research tells us that crime is often impulsive. Indeed, the average street-corner drug dealer makes less than minimum wage and takes significantly more risk than legal employment. But many young people don’t perform the cost-benefit calculations and find a sense of belonging in gangs that they may not have found in their families or schools. The efficacy of consequences in deterring crime is also undermined by the high percentage of defendants who suffer from mental illness and traumatic brain injuries, which impair judgment. In fact, suicide rates are nearly five times higher in U.S. jails than in the general population....

As with national security policy, those who are rational actors can potentially be deterred by the prospect of force, whether through police presence or punishment. Research suggests, however, that increasing the perceived chance of being caught is a much more effective crime-control tool than increasing the severity of the penalty. Moreover, the incapacitation effect of incarceration must be measured against the degree to which the conditions behind bars, isolation from society and challenges of reentry can increase the proclivity to offend.

Still, there is substantial evidence that a strategic police presence on city streets in certain hotspots can deter some types of crime, such as auto thefts, without simply displacing it to other areas. There is also the “carrot and stick” approach to community supervision where research has shown it is the swiftness and sureness of the sanction, not its duration, that affects behavior, along with positive incentives. Additionally, long probation terms do not lead to more public safety, but instead cause larger caseloads, meaning that those in their first year or two on supervision who can benefit from significant attention are less likely to get it....

The “defund the police” slogan was intended by all but the most radical advocates to communicate that other types of interventions, such as using clinicians to respond to some mental health calls, could contribute as much or more to safety as a police-led response.  Another innovation, READI Chicago, is a non-profit program that promotes peace in the most dangerous parts of Chicago by targeting men who are most likely to commit or be victims of violence.  It provides them with subsidized transitional jobs along with cognitive behavioral therapy and services such as case management, skill-building and peer mentoring by credible messengers.  Additionally, when it comes to incarcerated people who are reentering society, non-profit initiatives like the Prison Entrepreneurship Program that similarly tap into the power of relationships can reduce recidivism through efforts that go beyond reliance solely upon government-operated programming.

Coming to terms with the limits of brute force, the value of peace through strength and the central role of the private sector and civil society can prove challenging, in different ways, for both the Right and Left.  In general, neoconservatives have supported regime change abroad and more incarceration at home.  Meanwhile, some on the left were reluctant to acknowledge the deterrent effect of our Cold War military power and, in the criminal justice context, often place too much faith in government programs to rehabilitate people, without enough emphasis on the role of relationships fostered by families, religious congregations and non-profit organizations.  Just as America will always need military and police forces, strengthening the other parts of the country’s arsenal for promoting peace and justice at home and abroad can reduce its need to use them.

In both national security and criminal justice policy, the nation is well-served when Americans check their ideological predispositions long enough to consider what history and research teaches them about these concepts as they build both a better justice system and a stronger nation.

March 1, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Great and distinctive accounting of a modern evidence-based criminal law reform agenda

Jon Gould and Pamela Metzger have this interesting and important new Hill commentary headlined "Evidence-based paths toward criminal justice reform." I recommend the full piece, and here is how it gets started:

As recent events at the Capitol make clear, criminal legal reform is a moral and civic imperative for the new Biden administration.  President Joe Biden ran, in part, on a promise of reducing the United States’ outsized reliance on incarceration, correctional supervision and fines and fees and committed himself to addressing systemic racism in the criminal system.  Recent events have only increased the urgency for smart, compassionate criminal legal reforms that are based on empirical evidence, rather than on instinct or past practice.

Evidence-based criminal law reform — which draws on lessons learned from medicine and other disciplines — advocates policies driven by the results of research, rather than by anecdote or collective assumptions.  Evidence-based reform is widely known in corrections policy and police investigations and new research has led recent reforms of bail, sentencing and the death penalty.

But if the Biden administration wants to truly move the needle, it must direct its attention to widespread reform opportunities in venues that have often been overlooked.  We suggest that the Biden justice agenda include a focus on research and evidence-based reform in three key areas: prosecutorial charging discretion, participatory defense efforts and the needs of small, tribal and rural, or STAR, communities.

March 1, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

February 28, 2021

"Prisons are getting Whiter. That’s one way mass incarceration might end."

The title of this post is the headline of this provocative Washington Post commentary authored by Keith Humphreys and Ekow N. Yankah. Here are excerpts:

Research shows that many White Americans see incarceration as a “Black problem,” and the more they see it that way, the less willing they are to do anything about it.  Biden and others might surmount this resistance, however, by highlighting a surprising trend: White Americans have been filling jails and prisons at increasing rates in the 21st century. Reducing incarceration, reformers can credibly argue, will benefit Whites as much as Blacks....

Racial codings of social problems influence public attitudes through two basic processes.  The first is in-group favoritism, which is greater appreciation of and empathy for people we perceive as similar to ourselves.  Such favoritism increases willingness to help a stranger in distress, leave a big tip at a restaurant or grant a promotion at work, among many other kindnesses. In-group favoritism is not limited to race (we can be favorably disposed to someone over something as trivial as sharing a first name or a birthday), and people of all races are prone to it.  But race is clearly one of the many dimensions by which we judge similarity, so that as more White Americans understand that more Whites are behind bars, they may feel increased compassion toward prisoners and voice more support for policies to reduce incarceration.

The other process in play is more disturbing, because it implies an active attempt to harm others.  Sociologists Rachel Wetts and Robb Willer documented that, when told the income gap between White Americans and Black and Latino Americans was shrinking, Whites favored social welfare programs that they believed particularly helped other Whites. But they became less supportive of programs that they thought particularly helped minorities.  Wetts and Willer concluded that perceived threats to the racial hierarchy drive White opposition to helping Black Americans.  The same Whites who recoiled at a Black man rising to the presidency, for example, might oppose prison reforms (shorter sentences, better health care, early release for the sick and elderly) precisely because they believe that the beneficiaries will mainly be Black. Informing such people that prisoners are increasingly White could soften their hostility.

Persuading people to join the fight against mass incarceration because Whites stand to benefit is bound to repulse those already committed to the cause.  But because each state runs its own prison system and sets most criminal penalties, building a nationwide coalition is essential.  That can happen only by shifting the opinion of people who are not moved by — or indeed are even comforted by — the thought of prison populations being mostly Black. And exploding the idea that mass incarceration is only a “Black problem” may allow us to reimagine a broad range of other issues, such as the policing that helps feed it....

In the effort to control Black and Brown people through the criminal justice system, White Americans have shown a stunning willingness to tolerate a huge number of White prisoners as collateral damage.  And once such systems are built, they have a remarkable capacity for self-preservation; jail populations, for instance, have stayed constant even as crime has plummeted.  So we cannot say how well a strategy drawing attention to the Whitening trend will work. In his book “Dying of Whiteness,” physician Jonathan Metzl argues that White people’s racial resentment can lead them to cut off their nose to spite their face — opposing policies that would help them because they would help Black citizens, too. Indeed, numerous economists have concluded that America’s long history of hostility toward Black people has left it the sole advanced economy without some form of universal health care.  If some White Americans are willing to give up health care to keep their place in the racial hierarchy, perhaps they are willing to risk imprisonment as well.  Yet the reversal in rhetoric during the opioid crisis shows that entrenched policies can be changed.

What’s more, in a remarkable moment of convergence, libertarians, religious leaders and racial-justice advocates oppose mass incarceration for separate but overlapping reasons.  Were our country more just and less dismissive of Black pain, growing White incarceration would have no special weight in assessing the moral value of locking up more than 2 million of our fellow citizens.  Opponents of mass incarceration — including Biden — should continue to denounce racism within the criminal justice system.  But the president can also remind Americans that our racial fates are joined: All of us would benefit from the end of mass incarceration.

February 28, 2021 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Making the case to expand Prez Trump's executive order on overcriminalization

I noted in this post last month that, on January 18, 2021, Prez Trump issued an "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  This EO was intended to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, and this new Law.com commentary authored by Mark Holden and Norman Reimer make the case for expanding its ambit. The piece is headlined "Don't Reverse Trump's Order on Regulatory Overcriminalization, Expand Its Principles to Congress," and here are excerpts:

In the final days of his presidency, President Donald Trump signed an executive order entitled “Protecting Americans From Overcriminalization Through Regulatory Reform.”  While President Joe Biden has reversed a number of Trump’s executive orders, this is one he should keep. It is an important step in ensuring that criminal laws — specifically those buried in the countless thousands of federal criminal regulations — are clear and that prosecutors focus their tremendous power on enforcing those laws against people who actually intended to do something wrong or illegal....

This executive order sets forth three policies: (1) agencies that issue regulations with criminal penalties should be clear about what conduct is subject to criminal penalties and the mens rea standard for those offenses; (2) strict liability offenses are disfavored; and (3) criminal prosecutions of regulatory offenses should focus on people who knew what they were doing was wrong or prohibited, thereby causing or risking substantial public harm.

This executive order applies only to regulatory crimes, a specific subset of criminal laws that arise when Congress delegates authority to administrative agencies to criminalize conduct.  These laws are generally less well known to the public, because they are not enacted by Congress but rather by the dozens of agencies within the federal government. Furthermore, the overall volume of regulatory crimes has never been documented, though there are some estimates that number may be north of 300,000.

It is because these laws are less well known that this order is needed.  All laws, particularly criminal laws, should have clear requirements regardless of whether they are statutes passed by Congress or regulations issued by an agency.  It makes no sense for prosecutors to enforce these laws against people whose actions were not truly harmful and who did not know they were doing something that violated a criminal regulation.

Some critics might argue that this order would make it more difficult to prosecute white collar crimes.  But, making laws more clear, having fewer laws that call for strict liability, and focusing on truly wrongful conduct are laudable.  Indeed, it should be the norm in all contexts.  Moreover, just as most criminal law is disproportionately enforced against certain groups, regulatory enforcement is the same way.  The enforcement burden does not generally fall on Wall Street and C-suite executives, but rather on small businesses and the site managers, engineers and other mid- to low-level workers who work for them.

This executive order is a small, but meaningful, step in requiring the government to clearly lay out the conduct that is criminalized, to focus on persons whose wrongdoing was intentional and harmful, and to not punish people who did not know what they were doing was wrong or criminally prohibited.  In the rush to reverse prior policies, a positive step should be preserved.  Indeed, Congress should apply its principles to all of the statutory criminal law it enacts as well.

Prior related post:

February 28, 2021 in Offense Characteristics | Permalink | Comments (2)