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January 8, 2022

"Count the Code: Quantifying Federalization of Criminal Statutes"

SR-count-the-code-charts-page6The title of this post is the title of this fascinating new Heritage Foundation report authored by GianCarlo Canaparo, Patrick McLaughlin, Jonathan Nelson and Liya Palagashvili. Here is the report's summary and "key takeaways":

SUMMARY

The authors have developed an algorithm to quantify the number of statutes within the U.S. Code that create one or more federal crimes.  As of 2019, we found 1,510 statutes that create at least one crime.  This represents an increase of nearly 36 percent relative to the 1,111 statutes that created at least one crime in 1994.  Although the algorithm cannot precisely count discrete crimes within sections, we estimate the number of crimes contained within the Code as of 2019 at 5,199.  These findings support the conclusion that the number of federal crimes has increased, while also bolstering concerns that federal crimes are too diffuse, too numerous, and too vague for the average citizen to know what the law requires.

KEY TAKEAWAYS

  • This study quantifies the number of federal statutes that create a crime and estimates 5,199 federal crimes within the United States Code.
  • From 1994 to 2019, the number of sections that create a federal crime increased 36 percent.
  • Because many of these crimes apply to conduct no rational person would expect to be a crime, the government is potentially turning average Americans into criminals.

This report, and its useful but brief discussion of the "Relationship Between Federalization of Crime and Federal Prisoners" which includes the graphic reprinted above, got me to thinking about how hard it would be to effectively quantify and assess changes in federal sentencing law over the last 35 years since the passage of the Sentencing Reform Act of 1984.  I was thinking about this challenge because, based on a quick read, I cannot quite tell if the algorithm used in this study picked up only federal statutes that created new crimes or also captured statutes that only changed the penalties for existing crimes (which happens fairly often).

Notably, from 1984 through 2009, most new federal sentencing laws enacted by Congress increased statutory penalties (often in complicated ways).  But the 2010 Fair Sentencing Act and the 2018 FIRST STEP Act serve as recent examples lowering statutory penalties (also in complicated ways).  And then, of course, starting in the late 1980s, federal law was significantly shaped by yearly federal sentencing guideline changes, some of which were directed by Congress.  There have been over 800 guideline amendments, some minor (and mandatory before 2005), others major (and advisory after 2005), some even retroactive.  And, thanks to Apprendi-Booker, ACCA interpretations and other jurisprudential messes, the Supreme Court and lower federal courts have been "changing" federal sentencing law in various significant ways almost continuously over this period.

January 8, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (4)

January 7, 2022

Two of three defendants convicted of murdering Ahmaud Arbery given LWOP, other gets life with parole

This lengthy USA Today piece reports on a high-profile state sentencing that took place down in Georgia.  Here are the basics:

A judge sentenced three men to life in prison Friday for the murder of Ahmaud Arbery and denied the possibility of parole for two of the defendants, father and son Gregory and Travis McMichael.  However Judge Timothy Walmsley granted the possibility of parole to William "Roddie" Bryan, the McMichaels' neighbor who joined the chase and took video of the killing. Bryan must serve at least 30 years in prison before becoming eligible....

Before the sentencing was read, Walmsley held a minute of silence to represent a fraction of the time Arbery was running before he was shot.  He called the image of Travis McMichael aiming a shotgun at Arbery "absolutely chilling." The judge also quoted the defendant's statements, saying their words gave context to the video and guided his sentencing decision. The minimum penalty required by law for the murder charges is a life sentence; Walmsley had to determine whether each defendant would have the possibility of parole....

The three men chased the Arbery, 25, in trucks while he was running through the Satilla Shores neighborhood in Brunswick, Georgia, on Feb. 23, 2020.  The men weren't arrested for more than two months when Bryan's video was released, which fueled nationwide racial justice protests and later became a key piece of evidence in the murder trial. The nearly-all white jury deliberated for almost two days before finding the men guilty.  They were taken to Glynn County jail after the verdict was reached and are expected to appeal....

Walmsley said that while sentencing may not provide closure for the family, the community or the nation, it would hold the defendants accountable for their actions.  Arbery's parents, Marcus Arbery and Wanda Cooper-Jones, cried as the sentence was read.  Earlier Friday, the family asked for all three defendants to get the harshest penalty as they shared memories of him and the toll his death has taken....

The defendants all had the opportunity to speak before sentencing, a time when judges typically expect to hear remorse, but did not....

After being sentenced on the state charges, the three men will face a federal hate crimes trial for killing Arbery.  The three men are white; Arbery was Black. All three are charged with interfering with Arbery's rights and attempted kidnapping.  The McMichaels are also charged with using, carrying and brandishing — and in Travis McMichael’s case, firing — a gun during and in relation to a crime of violence.

The federal charges are punishable by death, life in prison or a shorter prison sentence and a fine, according to the Federal Bureau of Investigations.  There is no parole in the federal system. Attorneys will begin selecting a jury from a wide pool of 43 counties across the Southern District of Georgia for that trial Feb. 7. The proceedings are set to take place in Glynn County.

The McMichaels and Bryan are also facing a civil lawsuit filed by Arbery’s mother. The wrongful death suit seeks $1 million in damages and also names former Brunswick Judicial Circuit District Attorney Jackie Johnson, former Glynn County Police Chief John Powell, Waycross Judicial Circuit District Attorney George Barnhill, and several Glynn County police officers.

January 7, 2022 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (11)

Some more highlights from among many great new Inquest pieces

It has been a month since my last blog posting about Inquest, "a decarceral brainstorm," which means I am behind in flagging its latest must-read essays.  I will have to be content to just flag here with flagging a handful of the many newer pieces worth checking out:

By Kanav Kathuria, "The Invisible Violence of Carceral Food: There’s no such thing as a ‘humane’ eating environment in a penal system that inherently produces so much illness and death."

By Hannah Riley, "Too Little, Too Late: The bureaucracy in charge of parole in Georgia hasn’t kept up with the reality that the state’s prison system is a hotbed of death and despair."

By Sandhya Kajeepeta, "Community Spread: People in counties with higher jail populations are getting sicker and dying younger. The data shows that mass incarceration is playing a role."

By Hernandez Stroud, "Building Bridges: There’s a direct link between the penal system and community wellbeing. Here’s why, and how, I decided to teach that connection to a group of public-health students."

January 7, 2022 in Recommended reading | Permalink | Comments (0)

January 6, 2022

"Error Aversions and Due Process"

The title of this post is the title of this notable new paper now on SSRN authored by Brandon Garrett and Gregory Mitchell. Here is its abstract:

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty.  This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions.  While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and false convictions to be errors of equal magnitude.  Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent.  Indeed, a sizeable minority views false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free.  These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and more conviction prone than the minority of potential jurors who agrees with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy.  Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not disposed to hold the state to its high burden.  Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pre-trial screening of criminal cases and stricter limits on prosecution evidence.  Furthermore, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions such as bail and sentencing reform.  Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

January 6, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

January 5, 2022

Head of federal Bureau of Prisons has resigned (though will stay on pending a successor)

As reported in this new AP piece: "The director of the federal Bureau of Prisons is resigning amid increasing scrutiny over his leadership in the wake of Associated Press reporting that uncovered widespread problems at the agency, including a recent story detailing serious misconduct involving correctional officers." Here is more:

Michael Carvajal, a Trump administration holdover who’s been at the center of myriad crises within the federal prison system, has told Attorney General Merrick Garland he is resigning, the Justice Department said. He will stay on for an interim period until a successor is in place. It is unclear how long that process would take.

His exit comes just weeks after the AP revealed that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. The AP stories pushed Congress into investigating and prompted increased calls to resign by lawmakers, including the chairman of the Senate Judiciary Committee....

The administration had faced increasing pressure to remove Carvajal and do more to fix the federal prison system after President Joe Biden’s campaign promise to push criminal justice reforms. The Bureau of Prisons is the largest Justice Department agency, budgeted for around 37,500 employees and over 150,000 federal prisoners. Carvajal presided over an extraordinary time of increased federal executions and a pandemic that ravaged the system.

After the AP’s story was published in November, Senate Judiciary Committee Chairman Dick Durbin demanded Carvajal’s firing. Several congressional committees had also been looking into Carvajal and the Bureau of Prisons, questioning employees about misconduct allegations.

In a statement, Durbin, D-Ill., said Carvajal “has failed to address the mounting crises in our nation’s federal prison system, including failing to fully implement the landmark First Step Act,” a bipartisan criminal justice measure passed during the Trump administration that was meant to improve prison programs and reduce sentencing disparities.

“His resignation is an opportunity for new, reform-minded leadership at the Bureau of Prisons,” Durbin said.

Carvajal, 54, was appointed director in February 2020 by then-Attorney General William Barr, just before the COVID-19 pandemic began raging in federal prisons nationwide, leaving tens of thousands of inmates infected with the virus and resulting in 266 deaths.

COVID-19 is again exploding in federal prisons, with more than 3,000 active cases among inmates and staff as of Wednesday, compared with around 500 active cases as of mid-December. All but four BOP facilities are currently operating with drastic modifications because of the pandemic, with many suspending visiting.

Especially with implementation of the FIRST STEP Act on tap (discussed here), on top of all the other challenges prisons face amid a pandemic, leading BOP is anything but an easy job these days.  But I share Senator Durbin's hope that "new, reform-minded leadership" at the BOP will be forthcoming.

January 5, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (4)

Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes

Former federal prosecutor Barbara McQuade has this notable MSNBC opinion piece that makes a full-throated argument for throwing the book ay former Theranos founder Elizabeth Holmes. I recommend the piece in full, and here are excerpts:

Some people steal money with guns.  Other people steal money with lies.  In a court of law, they’re all crooks. But not all crooks are treated the same by the justice system, a fact Elizabeth Holmes may be counting on when it comes to her sentencing....  White-collar criminals like Holmes may not get their hands dirty in the traditional sense, but their conduct is no less criminal than a stickup in an alley.  In fact, upper-class offenders like Holmes might be even more reprehensible; while street crime is often motivated by need, white-collar crime is usually motivated by greed....

The government quantified Holmes’ investor fraud, arguing it amounted to more than $140 million, a figure that will largely influence her eventual sentence. Federal sentencing guidelines consider a number of factors, including the amount of money involved in the scheme. Based on that number, as well as enhancements and the sophistication of her scheme, Holmes is likely looking at a sentence between 14 and 17 years.

Sentencing is a key inflection point for disparities in the criminal justice system.  But will a judge actually give Holmes a 15-year sentence? Holmes’ defense attorneys, like the attorneys of many criminals before her, will certainly try to argue that the sentencing guidelines in white-collar cases are simply “too high.”  This argument has worked with judges in the past, and high-priced attorneys know that judges can reduce the sentence considerably in a fraud case, as long as they articulate a good reason. (Unlike in criminal cases involving drugs or guns, for example, Holmes does not face a mandatory minimum sentence.)...

Perhaps because judges see offenders who look like them or who share similar backgrounds, they often bite on the argument that sentences for white-collar crimes should be something less than the guidelines range.  I have heard defense attorneys argue that their clients have already been punished enough through societal shame.  You can imagine one of these white-collar defendants lamenting to his lawyer that he can’t even walk through the country club dining room without getting a nasty look from a fellow member.

The other advantage white-collar defendants enjoy at sentencing is their ability to showcase a life of good deeds and letters of support.  An upper-income defendant can often point to service on boards or donations to charitable causes as mitigating factors.  Here again we find problematic disparities baked into the justice system: A low-income defendant lacks the resources to amass anything resembling that kind of track record.  Similarly, while a defendant like Holmes can likely find prominent people to write her letters of support, a defendant lacking her resources usually also lacks the connections needed to mount a similar campaign.

Another argument often made by defense attorneys in white-collar cases is that incarcerating their clients would be a waste of resources because they pose no threat to public safety.  This may be true, but the federal sentencing statute provides that the purpose of sentencing also includes deterrence and just punishment.  Deterrence is especially important in white-collar cases because these are crimes that are carefully planned. No one commits investor fraud in the heat of passion. If defendants who perpetrate massive fraud can get away with a slap on the wrist, then others will calculate that it is worth the gamble to do the same.  A strong sentence in white-collar cases can provide an important data point in that calculation. And fraud is not an inherently victimless crime.

As we think about ways to address racial and economic disparities in the criminal justice system, we should consider not only the disproportionately long sentences that are imposed on street criminals.  We should also consider the paltry ones that are meted out to the wealthy.  We will find out soon enough how Elizabeth Holmes’ sentence does or does not contribute to this pattern.

Because I do not think all that many federal defendants (even "wealthy" ones) actually do get "paltry" sentences — unless and until they cut a special deal with a federal prosecutor, see, e.g., Jeffrey Epstein's first pass — I think we generally need to worry a whole lot more about disproportionately long federal sentences than about problematically short ones.  Still, this commentary  does usefully highlights how advantaged defendants are often better able to present mitigating sentencing factors than disadvantages ones.  For me, that provides a reason for the system to work harder to help the disadvantaged, not a reason to slam the advantaged.  As I expressed in an article nearly 15 years ago, it always worries me when an emphasis on sentencing consistency  fuels "a leveling up dynamic"  that pushes sentences to be more consistently harsh.

Prior related post:

January 5, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (8)

Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits

Walter Pavlo has this extended new Forbes piece detailing some of the nettlesome issues that surround implementation of various parts of the FIRST STEP Act. The piece is headlined "Implementation Of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court," and here are excerpts:

President Donald Trump signed one of the most sweeping criminal justice reform laws, The First Step Act (FSA), into law on December 21, 2018.  Since then, its interpretation has been debated and argued, mostly behind closed doors in Washington, on how to fully implement it.  One lesser defined part of FSA is whether or not those in custody within the Federal Bureau of Prisons (BOP), could earn credits for participation in classes and meaningful activities in order to get time reduced off of their sentence.  COVID’s wrath on the BOP slowed FSA implementation but we are on the cusp of discovering the extent of the law’s effects on those currently incarcerated....

By January 24, 2022, the BOP is under a mandate to have the FSA fully implemented.  Under the FSA, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FSA Time Credits for every 30 days of program participation.  Minimum and low-risk classified prisoners who successfully complete recidivism reduction programming and productive activities and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn up to an additional 5 days of FSA Time Credits for every 30 days of successful participation.  However, prisoners serving a sentence for a conviction of any one of multiple enumerated offenses are ineligible to earn additional FSA Time Credits regardless of risk level.  It is complicated.

Many of the BOP’s facilities are understaffed and pressures of COVID combined with prisoner lockdowns has led many institutions to suspend or delay many of the programs that could have counted toward FSA credits.  Now an internal memorandum posted at some prison camps across the country is causing a stir because of how sweeping the FSA may be for prisoners.  The memo stated [with caveats and exclusions]: "Under the First Step Act of 2018 (FSA), eligible inmates may earn Federal Time Credit (FTC) for successful participation in Evidence-Based Recidivism Programs and Productive Activities.... Inmates are now eligible to earn FTC retroactively back to December 21, 2018; this award will be based on criteria established by BOP."...

Far from clarifying things, the implementation of FSA, based on this limited amount of information, will be almost impossible over the near term.  This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement and supervised release.  It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system.

Those in prison want to be out of the institution.  With many programs suspended in institutions, prisoners have been looking to “Productive Activities,” like a job in the prison, as a means to gain FSA credits.  However, interpretation of that term has been the subject of discussion ever since FSA was passed.  The list of program classes eligible for credit is limited and the hours associated with each one must be based on a need assessment of the prisoner.  It is unknown how a BOP case manager can look back until 2018 for classes (programs) that did not even exist because there was no FSA until December 2018.  In order for “Productive Activities” during the time frame of 2018-2021, it must mean that the BOP is interpreting a broad definition of the term ... I know the prisoners’ interpretation....

Indeed, there will be many prisoners on January 15, 2022 who are being detained unlawfully if the law comes into effect on that day and they are still incarcerated ... that is going to happen.  Thousands will file lawsuits whether they are in prison, halfway houses, home confinement or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit.  Rather than Trump’s FSA being a law, it is going to be subject to interpretation by judges across the country.

While this information is welcome news to those incarcerated, it is also a monumental task for BOP case managers.  Case managers are primarily responsible for moving inmates from prison to halfway houses and home confinement.  It requires a tremendous amount of paperwork and coordination, often taking months.  There is also the additional issue of capacity at halfway houses and monitoring.  This is going to be more complicated than anyone ever imagined.

January 5, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

“A Family-Centered Approach to Criminal Justice Reform.”

The title of this post is the title of this interesting new report authored by Christopher Bates, a legal fellow at the Orrin G. Hatch Foundation.  This 100+-page report is styled a "Hatch Center Policy Review," and here is part of its introduction:

Conversations about criminal justice typically center around two groups of individuals: individuals who are convicted of crimes, and individuals who are victims of crime.  The former receive perhaps the lion’s share of attention, as policymakers and commentators debate what consequences they should face, how such consequences should be meted out, what procedural protections should apply, and what can be done to reduce the likelihood that an individual will offend or reoffend. As to victims of crime, discussions may focus on the individual level — how to ensure justice is done in particular cases — or on a broader level—what can be done to reduce crime and improve public safety.

There is another group, however, that can and must be part of the conversation — the family members of convicted individuals.  These include spouses and intimate partners, parents and siblings, and, perhaps most importantly, children....

For decades, researchers have documented the deleterious effects that incarceration and criminal involvement have on the families of individuals who engage in criminal activity. They have also recorded the ways in which strong family ties benefit communities and reduce recidivism. Taking into account both sides of this equation—the impacts on, and the impacts of, family members — is essential to designing effective criminal justice policy.

This paper seeks to do just that — to suggest an approach to criminal justice policy that builds on the decades of research regarding the interrelationship between family ties, incarceration, and criminal behavior....

This paper proceeds in five parts.  Part I surveys the research on family relationships, incarceration, and recidivism, with a focus on how incarceration impacts family members and children and how family relationships affect recidivism.  It also discusses the research on prison visitation and recidivism and how maintaining stronger family ties during incarceration can lead to better reentry outcomes.  Part II turns to the topic of prison policy and how this research can inform decisions about inmate placement, visitation, and contact with family members.  Part III considers the issue of reentry and how policymakers can design laws and programs that aid, rather than impede, the ability of formerly incarcerated individuals to find employment, housing, and other necessities so they can provide for their families and avoid cycles of recidivism and reincarceration.  Part IV turns to punishment and asks what insights a family-centered approach to criminal justice reform can offer regarding sentencing practices and determining what conduct should be subject to criminal penalties in the first place.  It suggests that a principle called parsimony — which says policymakers should seek the least amount of criminal punishment necessary to accomplish a law’s legitimate ends — can fit well with a family-centered approach because it seeks to avoid inflicting more harm than is necessary on convicted individuals and their families.  Part V discusses police reform and offers suggestions for how the principles that can be drawn from the research described in this paper can inform discussions about improving police transparency, accountability, and officer-resident interactions.  A brief conclusion follows.

January 5, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

January 4, 2022

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

January 4, 2022 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Fascinating sentencing sentiments and commitments in new policy memo from new Manhattan DA

A notable new staff memo from the new Manhattan DA is making new headlines, such as this notable one from the New York Post: "Manhattan DA to stop seeking prison sentences in slew of criminal cases."  Here is a bit of context from the press piece:

Manhattan’s new DA has ordered his prosecutors to stop seeking prison sentences for hordes of criminals and to downgrade felony charges in cases including armed robberies and drug dealing, according to a set of progressive policies made public Tuesday.

In his first memo to staff on Monday, Alvin Bragg said his office “will not seek a carceral sentence” except with homicides and a handful of other cases, including domestic violence felonies, some sex crimes and public corruption. “This rule may be excepted only in extraordinary circumstances based on a holistic analysis of the facts, criminal history, victim’s input (particularly in cases of violence or trauma), and any other information available,” the memo reads.

Assistant district attorneys must also now keep in mind the “impacts of incarceration” including on public safety, barriers to housing and employment, financial cost and race disparities, Bragg instructed.

In cases where prosecutors do seek to put a convict behind bars, the request can be for no more than 20 years for a determinate sentence, meaning one that can’t be reviewed or changed by a parole board. “The Office shall not seek a sentence of life without parole,” the memo states.

This "first memo to staff" includes a three-page introductory accounting of DA Bragg's vision of the work of his office, as well as a seven page "Policy & Procedure Memorandum." These documents, both available here, are fascinating reads and here are just a few notable excerpt from these documents (with footnotes, numbering and some context left out):

I have dedicated my career to the inextricably linked goals of safety and fairness. This memo sets out charging, bail, plea, and sentencing policies that will advance both goals. Data, and my personal experiences, show that reserving incarceration for matters involving significant harm will make us safer....

Invest more in diversion and alternatives to incarceration: Well-designed initiatives that support and stabilize people – particularly individuals in crisis and youth – can conserve resources, reduce re-offending, and diminish the collateral harms of criminal prosecution....

Focus on Accountability, Not Sentence Length: Research is clear that, after a certain length, longer sentences do not deter crime or result in greater community safety.  Further, because survivors and victims of crime often want more than the binary choice between incarceration and no incarceration, we will expand our use of restorative justice programming....

The Office will not seek a carceral sentence other than for homicide or other cases involving the death of a victim, a class B violent felony in which a deadly weapon causes serious physical injury, domestic violence felonies, sex offenses in Article 130 of the Penal Law, public corruption, rackets, or major economic crimes, including any attempt to commit any such offense under Article 110 of the Penal Law, unless required by law.  For any charge of attempt to cause serious physical injury with a dangerous instrument, ADAs must obtain the approval of an ECAB supervisor to seek a carceral sentence....

ADAs shall presumptively indict both top counts and lesser included counts when presenting cases to the grand jury, permitting a wider range of statutorily permissible plea bargaining options. This presumption can be overcome with supervisory approval....

For any case in which a person violates the terms of a non-carceral sentence or pre-plea programming mandate, the Office will seek a carceral “alternative” only as a matter of last resort. The Office will take into account that research shows that relapses are a predictable part of the road to recovery for those struggling with substance abuse, and the Office will reserve carceral recommendations for repeated violations of the terms of a mandate.

January 4, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Tenth Circuit panel finds sentence increase for open plea to be procedurally unreasonable

One of many challenges in the world of sentencing policy and practice, especially when it comes to appellate review, is that a sentencing judge who often extensively explains his or her sentencing decision-making at length is often more likely to articulate a legally problematic reason that then provides the basis for a sentence reversal.   This reality is demonstrated in a new Tenth Circuit panel decision in US v. Cozad, No. 20-3233 (10th Cir. Jan. 3, 2022) (available here).  Cozad is a really interesting opinion for lots of reasons, and it starts with the district court at sentencing explaining why the defendant was here getting a sentence a few months above the bottom of the guideline range in this particular way:

[I]t’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low end guideline range.  But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

Here is how the Tenth Circuit panel framed the issue that this statement of sentencing reasons presented on appeal:

This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is.

There are lots of parts to the opinion that follows which serves as an effective overview of various aspects of reasonableness review and plea policies and practices. I highly recommend the full opinion for federal sentencing fans, and here are some notable excerpts (with lots of cites omitted):

[A]lthough the district court stated that its practice was not “a hard-and-fast rule by any means,” the court did not explain why it was applying the rule in Ms. Cozad’s case.  Similarly, although the district court made a passing reference to “the agreements that typically happen in a plea agreement,” the court did not specify what those “agreements” are. On this record, therefore, we cannot but conclude that the district court gave Ms. Cozad a longer sentence than she otherwise would have received simply because she pled guilty without a plea agreement. Whether it was permissible for the district court to do so appears to be a question of first impression in this or any other circuit....

For reasons of history, as well as congressional intent, appellate courts have interpreted § 3553(a) liberally.  Nevertheless, a district court does not enjoy boundless discretion with respect to the facts it relies on at sentencing.... Even when the fact ostensibly relates to the defendant’s conduct or characteristics, its consideration may be grounds for remand when the fact has no bearing on any of the aims of punishment set forth in § 3553(a)(2)....

The government argues that a district court may consider the absence of a plea agreement because such agreements often include certain conditions, such as appellate waivers.... When the parties reach an agreement, a district court can evaluate the terms, including any waivers, in the context of the agreement as a whole to determine the degree to which the waivers may show some additional acceptance of responsibility. By contrast, when the defendant enters an open plea, the court may not know whether any plea agreement was offered, let alone under what terms. Indeed, there is no evidence in this case that an appellate waiver was ever discussed. In these circumstances, without more information, it is unreasonable to penalize the defendant for the absence of an appellate waiver in a nonexistent agreement....

The government further argues that courts may “for uniformity purposes” grant “additional leniency” to defendants who enter into plea agreements and withhold it from those who do not.  The government reasons that, were a court required to sentence a defendant who pleads open “to the same sentence he would have had, had he taken a plea agreement,” there would be “no compelling reason” for a defendant to accept the conditions of a plea bargain.  We are not convinced....

[E]ven in cases where there is only a single viable charge, the government could threaten to recommend a harsher sentence or to pursue an aggressive interpretation of the guidelines.  Consequently, because courts are free to take the government’s recommendation into account, a defendant who refuses to plea bargain would still risk receiving a higher sentence in many cases.

More fundamentally, the government’s argument fails because providing a “compelling reason” for a defendant to enter a plea agreement, whether by granting “additional leniency” or withholding it, is not a valid sentencing rationale.  Section 3553(a) provides that courts are to impose no more punishment than is necessary to comply with the four penological goals enumerated in § 3553(a)(2). When a court imposes a sentence to achieve some other purpose, that sentence is unlawful.

January 4, 2022 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

January 3, 2022

Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more

The high-profile fraud trial of Theranos founder Elizabeth Holmes resulting in a mixed verdict, but her conviction on four counts each with 20-year maximums means that she now faces up to eight decades in federal prison. And, as regular readers know, her acquittal/non-conviction on various charges do not preclude the federal judge at sentencing from considering evidence associated with those charges.  This short New York Times piece, headlined "What happens next to Elizabeth Holmes," provides some details about what may lie ahead:

Elizabeth Holmes, the founder of the failed blood testing start-up Theranos, now awaits sentencing after being found guilty of four of 11 charges of fraud on Monday.

Ms. Holmes, 37, left the San Jose, Calif., courtroom through a side door after the verdict was read in the case, which was closely scrutinized as a commentary on Silicon Valley. She was found guilty of three counts of wire fraud and one count of conspiracy to commit wire fraud. She was found not guilty on four other counts. The jury was unable to reach a verdict on three counts, which were set aside for later.

After the verdict was read, defense and prosecution lawyers discussed plans for Ms. Holmes’s sentencing, the status of her probation and the fate of the three hung charges. Judge Edward J. Davila of the Northern District of California, who oversaw the case, said he planned to declare a mistrial on those charges, which the government could choose to retry. The parties agreed that Ms. Holmes would not be taken into custody on Monday.

A sentencing date is expected to be set at a hearing on the three hung charges next week. Ms. Holmes can appeal the conviction, her sentence or both. She will also be interviewed by the U.S. Probation Office as it prepares a pre-sentence report....

Each count of wire fraud carries up to 20 years in prison, though Ms. Holmes is unlikely to receive the maximum sentence because she has no prior convictions, said Neama Rahmani, the president of the West Coast Trial Lawyers and a former federal prosecutor.

But he said her sentence was likely to be on the higher end because of the amount of the money involved. Ms. Holmes raised $945 million for Theranos during the start-up’s lifetime and those investments were ultimately wiped out.

Given the amount of loss and other factors likely to lead to upward guideline adjustment, Holmes is sure to face a very high guideline sentencing range (perhaps a range as high as life imprisonment). But her lack of criminal history and other potential mitigating personal factors leads me to expect her to receive a below-guideline sentence. But exactly what that sentence might be (and what the parties will argue for) will be interesting to following in the months ahead.

January 3, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (11)

"Racial Attitudes and Criminal Justice Policy"

The title of this post is the title of this lengthy new paper soon to be published in the journal Crime and Justice.  The article is authored by Francis Cullen, Leah Butler and Amanda Graham, and here is its abstract:

Empirical research on public policy preferences must attend to Whites’ animus toward Blacks.  For a quarter-century, studies have consistently found that Kinder and Sanders’s four-item measure of “racial resentment” is a robust predictor of almost every social and criminal justice policy opinion.  Racial animus increases Whites’ opposition to social welfare policies that benefit Blacks and their support for punitive policies that disadvantage this “out-group.”  Any public opinion study that fails to include racial resentment risks omitted variable bias.  Despite the continuing salience of out-group animus, recent scholarship, especially in political science, has highlighted other racial attitudes that can influence public policy preferences.  Two developments are of particular importance.  First, Chudy showed the progressive impact of racial sympathy, a positive out-group attitude in which Whites are distressed by incidents of Blacks’ suffering (such as the killing of George Floyd).  Second, Jardina and others documented that Whites’ in-group racial attitudes, such as White identity/consciousness or white nationalism, have political consequences, reinforcing the effects of racial resentment.  As the United States becomes a majority-minority nation, diverse in-group and out-group racial attitudes are likely to play a central role in policies — including within criminal justice — that the public endorses.

January 3, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

Will SCOTUS take up challenge to Georgia's remarkable standard for implementing Eighth Amendment's ban on executing the intellectually disabled?

The question in the title of this post is prompted by this new Sidebar piece by Adam Liptak for the New York Times about Georgia's unique way for (not quite) protecting the intellectually disabled from an unconstitutional execution. The full piece is a great read under this full headline: "Language Mistake in Georgia Death Penalty Law Creates a Daunting Hurdle: The Supreme Court will decide whether to hear a challenge to the law, which requires that defendants in capital cases who are intellectually disabled prove it 'beyond a reasonable doubt' — a phrase that was inserted in error."  Here are excerpts:

The U.S. Supreme Court will soon decide whether to hear [an Eighth Amendment] case, which challenges a Georgia law that places an extraordinary burden on capital defendants seeking to be spared execution.  In the process, the justices could clarify whether it is just the words or also the music of their precedents that binds lower courts.

The case concerns Rodney Young, who was convicted in 2012 of killing the son of his estranged girlfriend.  Mr. Young grew up in New Jersey, where his schools classified him, in the language of the time, as “mentally retarded.”  These days, they would call him intellectually disabled.

A 2002 Supreme Court decision, Atkins v. Virginia, ruled that the Eighth Amendment forbids putting intellectually disabled people to death.  But the Georgia law at issue in the case, unique in the nation, requires capital defendants seeking to be spared execution to prove they are intellectually disabled beyond a reasonable doubt.

That is the standard that ordinarily applies to the government in criminal cases. It is intended to be hard to meet and, in the context of prosecutions, is meant to tolerate letting some guilty people go free rather than risk sending innocent ones to prison. The Georgia law inverts this dynamic, tolerating the executions of some intellectually disabled people.... The Atkins decision largely let states decide who qualified as intellectually disabled. But two later decisions, in 2014 and 2017, struck down measures creating, as Justice Anthony M. Kennedy put it, “an unacceptable risk that persons with intellectual disability will be executed.”

The Georgia law has a curious origin story.  Enacted in 1988, it was the first in the nation to ban the execution of intellectually disabled people, predating the Atkins decision by 14 years. But it was drafted in haste. “I dropped the ball,” Jack Martin, one of the provision’s drafters, told the Georgia House of Representatives in 2013. He and his co-author, Mr. Martin said, had not meant to impose a reasonable doubt standard, but they put a key clause in the wrong place. “It was sloppy draftsmanship, pure and simple,” Mr. Martin said. “I don’t think anybody intended that to happen.”

Almost every other state requires defendants to prove they are intellectually disabled by just a preponderance of the evidence — that is, by showing it to be more likely than not. The difference in the two standards matters, lawyers with the American Civil Liberties Union, which represents Mr. Young, told the Supreme Court in a recent petition asking the justices to hear his case. “In the states that apply a preponderance-of-the-evidence standard, approximately one-third of those asserting that they are intellectually disabled succeed in invoking the Eighth Amendment’s protection,” they wrote. “In Georgia, not a single person convicted of intentional murder has prevailed at trial in establishing that he is intellectually disabled.”...

Dissenting from the Georgia Supreme Court’s decision upholding the state law, Justice Charles J. Bethel said simple logic demonstrated that the law created, in the words of the U.S. Supreme Court, “an unacceptable risk” that some intellectually disabled people would be executed. In his concurring opinion, Justice Nahmias, who served as a law clerk to Justice Antonin Scalia and is now the chief justice of the Georgia Supreme Court, acknowledged that the question in the case was a close one and that the reasoning in U.S. Supreme Court precedents “certainly casts doubt on this state’s uniquely high standard of proof.”

Justice Nahmias added another consideration, one seemingly grounded in a realistic assessment of the U.S. Supreme Court’s new conservative supermajority. “If I had to guess today,” he wrote, “I would say that it is likely that if the United States Supreme Court, as currently comprised, is called on to decide whether Georgia’s beyond-a-reasonable-doubt standard for proof of intellectual disability violates the Eighth Amendment, a majority of the justices would not extend the holdings” of the decisions in 2014 and 2017 “to strike down our state’s statute, notwithstanding the reasoning of the majority opinions in those two cases.”

January 3, 2022 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Senator Cotton leans into political foolishness rather than serious policy issues in latest "jailbreak" commentary

Senator Tom Cotton is always eager to provide a "tough-and-tougher" perspective on criminal justice issues, and he has long responded to advocacy against mass incarceration by claiming that the US actually has an "under-incarceration problem."  Some time ago, I was described at least some of his takes on criminal justice issues as at least somewhat thoughtful, but more recently it seems Senator Cotton has been content to make op-ed claims which are quite suspect and have been described as "horrifically dishonest" and are disconnected from political and social reality.  His latest commentary, published here today at Fox News, sets the bar especially low to start 2022 because he turns serious criminal justice policy issues into political posturing.  Here are some key parts of this piece (with a few phrases highlighted for follow-up commentary): 

In 2020, our nation’s state and federal prison populations plummeted 15% to the lowest levels since 1992 — at the same time, murders skyrocketed nearly 30% to the highest level since 1998.  By the middle of last year, local jail populations similarly shrank by an astonishing 25%.  In raw numbers, state and federal authorities reduced their prison populations by 214,000 in 2020 and local authorities reduced their jail populations by 185,000 compared to 2019.  This is the worst jailbreak in American history and was committed in broad daylight.  Our nation has paid the price.

So-called "coronavirus protocols" caused most of these reductions.  Last year, the federal government sent thousands of inmates home in response to the pandemic.  Rikers Island in New York City released 1,500 criminals, and Chicago’s largest prison released a quarter of its inmates.

Democrat-run states also released convicted murderers and an untold number of violent felons in the name of "public health."  In Virginia, an accused rapist murdered his accuser.  In Florida, a documented gang member murdered a 28-year-old.  In my home state of Arkansas, a career criminal murdered a police officer.  What did these murderers have in common?  They had all been released early from jail due to concerns about coronavirus....

The rash of early releases is not the entire story.  The drop in incarceration in 2020 was also fueled by a shocking 40% nationwide decline in the admission of newly sentenced criminals — which indicates a massive decrease in prosecutions.  In New York, there was an even starker 60% drop in admission of newly sentenced criminals.  In California, there was a 66% drop, the biggest decline of any state.  This concentrated drop in prosecutions is virtually unexplainable, except by the proliferation of progressive "Soros prosecutors" and a shrinking willingness to hold the guilty accountable.

There were certainly plenty of crimes to prosecute last year when over 100,000 Americans died from homicide and drug overdoses and the nation was wracked with the worst rioting in a generation. Initial data also shows that California experienced a 31% increase in murders, while New York experienced a 142% increase in gang killings and a 42% increase in murders overall.... This under-incarceration crisis must end.

All serious people should be taking seriously how the COVID pandemic has been impacting US crime rates, criminal justice case processing, and prison and jail populations. But talking about these issues in terms of "Democrat-run states" and "the proliferation of progressive Soros prosecutors" is so foolish simply in light of the data. 

For starters, it is notable and amusing that, right after complaining about releases in "Democrat-run states," Senator Cotton then gives examples of crimes in GOP-run states of Arkansas and Florida.  More systematically, the uptick in murders in 2020 was a nationwide phenomenon as this Pew report highlights, and many GOP states had the highest uptick in murder rates: "At least eight states saw their murder rates rise by 40% or more last year, with the largest percentage increases in Montana (+84%), South Dakota (+81%), Delaware (+62%) and Kentucky (+61%), according to the CDC."  (Indeed, this US News piece reveals that the top seven states in terms of homicide rates in 2020 were all "red" states.)

Turning toward prison populations and drops in prosecutions, this dynamic is again not an issue involving only "blue" states and "progressive Soros prosecutors."  Senator Cotton appears to be cherry picking some numbers from this recent BJS report titled "Prisoners in 2020 – Statistical Tables."  But Figure 3 of that report shows that the top four jurisdictions with biggest 2020 reductions in prison population were, in order, California, the federal system, Texas and Florida.  In 2020, three of those four jurisdictions were under GOP control.  Similarly, though I do not recall Prez Trump appointing any "progressive Soros prosecutors," the data show that the federal system saw a 40% decline in prison admissions; "red" states ranging from Florida to Idaho to Indiana to Kentucky to Kansas to South Carolina all saw above-national-average declines in the admission of sentenced prisoners.

Political foolishness aside, if Senator Cotton really wants to get serious about pandemic era crime and punishment issues, why is he not seriously trying to help develop more and deeper data about all these important and complicated trends and others.  Exactly what types of offenders have been released during pandemic?  What types of cases were prosecuted less in 2020?  Have these trends continued through 2021?  We have decent (but not great) homicide data from local police departments, but we need much better and richer data.  Notably, in 2022, Senator Cotton still references "Initial data" from 2020 on homicides.  Is this really the best we can do at the start of 2022?  And how about better data on other crimes? 

Moreover, despite two more big COVID waves in 2021, we have very little data in real-time about the national prison population (this VERA accounting as of March 2021 is the last data I have seen).  And reports suggest declines in prison populations have slowed or stopped, while jail populations have risen through 2021.  Notably, we do have real time data from the federal BOP revealing that there are now "157,654 Total Federal Inmates," which is over 6000 more federal prisoners compared to the first full day of the Biden Administration when BOP reported  151,646.  Since the federal prison population went down nearly 38,000 persons(!) under Prez Trump, and now has gone up over 6,000 persons during the first year of the Biden Administration, maybe Senator Cotton ought to consider if he should target a very different ""jailbreak" bogey-man than "progressive Soros prosecutors" is he really thinks we have an "under-incarceration crisis."  Sigh.

January 3, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

January 2, 2022

Reviewing federal criminal prosecutions of January 6 rioters one year later

A few weeks ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes for their involvement in the January 6 riot at the US Capitol.  Today I see this lengthy new AP piece, headlined "Capitol rioters’ tears, remorse don’t spare them from jail," providing another overview of the state of federal prosecutions as we approach the one-year anniversary of these high-profile crimes.  Here are excerpts:

Judges are hearing tearful expressions of remorse — and a litany of excuses — from rioters paying a price for joining the Jan. 6 insurrection, even as others try to play down the deadly attack on a seat of American democracy.

The Justice Department’s investigation of the riot has now entered the punishment phase.  So far, 71 people have been sentenced for riot-related crimes.  They include a company CEO, an architect, a retired Air Force lieutenant colonel, a gym owner, a former Houston police officer and a University of Kentucky student.  Many rioters have said they lost jobs and friends after their mob of Donald Trump loyalists disrupted the certification of Joe Biden’s presidential victory.

Fifty-six of the 71 pleaded guilty to a misdemeanor count of parading, demonstrating or picketing in a Capitol building. Most of them were sentenced to home confinement or jail terms measured in weeks or months, according to an Associated Press tally of every sentencing.  But rioters who assaulted police officers have gotten years behind bars.

With hundreds of people charged, the Justice Department has taken heat for not coming down harder on some rioters, and it has failed to charge anyone with sedition or treason despite hints early on in the investigation.  But lower-level cases tend to be easier to prosecute and typically get resolved before more complex ones.

At least 165 people have pleaded guilty so far, mostly to crimes punishable by a maximum sentence of six months.  There are dozens of cases involving more serious offenses still moving through the system.  More than 220 people have been charged with assaulting or impeding law enforcement officers at the Capitol, according to the Justice Department.  Since November, three of them have been sentenced to prison terms ranging from more than three years to just over five years.

The District of Columbia federal court is overloaded with Jan. 6 cases.  More than 700 people have been charged so far and the FBI is still looking for more.  Among the most serious charges are against far-right extremist group members accused of plotting attacks to obstruct Congress from certifying the 2020 presidential election.  Their cases haven’t yet gone to trial.

The rioters’ refrains before the judges are often the same: They were caught up in the moment or just following the crowd into the Capitol. They didn’t see any violence or vandalism.  They thought police were letting them enter the building.  They insist they went there to peacefully protest.

Their excuses often implode in the face of overwhelming evidence.  Thousands of hours of videos from surveillance cameras, mobile phones and police body cameras captured them reveling in the mayhem.  Many boasted about their crimes on social media in the days after the deadly attack....

Eighteen judges, including four nominated by Trump, have sentenced the 71 defendants.  Thirty-one defendants have been sentenced to terms of imprisonment or to jail time already served, including 22 who received sentences of three months or less, according to the AP tally.  An additional 18 defendants have been sentenced to home confinement. The remaining 22 have gotten probation without house arrest.

A seemingly genuine display of contrition before or during a sentencing hearing can help a rioter avoid a jail cell.  The judges often cite remorse as a key factor in deciding sentences.

Some of many prior related posts:

January 2, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)