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March 12, 2022

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

March 12, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Card Carrying Sex Offenders"

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

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

March 12, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

March 11, 2022

North Carolina Gov, following recommendation of state Juvenile Sentence Review Board, commutes sentence of three convicted of murder as teens

As detailed in this North Carolina Gov press release, "Governor Cooper has commuted the sentences of three people who were convicted for crimes committed when they were teenagers. The commutations follow an intensive review of their cases, including the length of their sentences, their records in prison, and their readiness to succeed outside of prison." Here is more from the press release (with links from the original):

The commutations are the first recommended to the Governor by the Juvenile Sentence Review Board which he established by Executive Order last year. The commutation applications were thoroughly reviewed by the Office of Executive Clemency, the Office of the General Counsel and the Governor.  These commutations end prison sentences on time served.

The creation of the Review Board followed the change in North Carolina law which raised the age of juvenile jurisdiction to include 16- and 17-year-olds, making North Carolina the last state in the nation to do so.  Studies of brain development and psychology show fundamental differences between juvenile and adult minds and behavior, and state and federal law treat children differently from adults for the purpose of sentencing.

The Review Board was also part of a series of recommendations from the Governor’s Task Force for Racial Equity in Criminal Justice (TREC) that has worked to rectify racial disparities in the criminal justice system. More than 80 percent of people committed to North Carolina prisons for crimes they committed as juveniles are people of color.

“North Carolina law continues to change to recognize that science is even more clear about immature brain development and decision making in younger people,” Cooper said. “As people become adults, they can change, turn their lives around, and engage as productive members of society.”

The three people whose sentences were commuted are:

  • April Leigh Barber, 46, who has served 30 years in prison for her role at age 15 in the murders of her grandparents, Lillie and Aaron Barber, in Wilkes County. While incarcerated, Ms. Barber has been consistently employed and has participated in significant programming, including earning her G.E.D. and paralegal certificate. Link to commutation.
  • Joshua McKay, 37, who has served 20 years in prison for the murder at age 17 of Mary Catherine Young in Richmond County. While incarcerated, Mr. McKay has been consistently employed, including as a carpenter and welder. Mr. McKay’s projected release date absent this commutation would have been in November 2022. Link to commutation.
  • Anthony Willis, 42, who has served 26 years in prison for the murder at age 16 of Benjamin Franklin Miller in Cumberland County. While incarcerated, Mr. Willis has been consistently employed and has completed five college degrees. Link to commutation.

The three people will be subject to post-release supervision by Community Corrections at the North Carolina Department of Public Safety to help them succeed and avoid missteps when they return to their communities.  “Most of the individuals who enter prisons will return to their communities one day. Providing high quality, evidenced based treatment and programming is a top priority for our prison system,” said Department of Public Safety Secretary Eddie Buffaloe. “These commutations should inspire individuals who are incarcerated to use all available resources to better themselves and prepare for a successful return to society.”

The Review Board continues to review petitions from those who were incarcerated for crimes committed as juveniles, and looks at many factors in its review, including rehabilitation and maturity demonstrated by the individual, record of education or other work while incarcerated, record of good behavior or infractions, input from the victim or members of the victim’s family, and more.

March 11, 2022 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Orange Is the News Blackout: The First Amendment and Media Access to Jails"

The title of this post in the title of this article recently posted to SSRN authored by Frank LoMonte and Jessica Terkovich.  Here is its abstract:

County jails are hotspots for the spread of COVID-19 infection, overlaid on top of already-existing inadequacies in medical care, overcrowding, and other substandard conditions. Yet despite the intense public interest and concern in the safe and humane operation of jails, they are among the most impenetrable places for news coverage.  A fractured U.S. Supreme Court decision, Houchins v. KQED, has left widespread uncertainty about what — if any — First Amendment right journalists and jail detainees have to speak with each other.

This Article examines and critiques the dubious constitutional logic that has left jail inmates without assurance of any practically effective method of enlisting help from the press and public to blow the whistle on unsafe jail conditions.  The Article calls for the Supreme Court to revisit its unhelpful, decades-old precedent that has emboldened jails to enact highly restrictive policies that deny detainees, many of whom have been convicted of nothing and are being held on petty “poverty charges” — any meaningful ability to speak to the news media.  The Article reports on the results of a nationwide survey of jail policies uncovering several with bizarre and constitutionally indefensible constraints, including one big-city jail that openly forbids jail inmates from discussing jail conditions with the news media.

The authors view the restrictive climate for inmate/media communications in light of contemporary developments, both legal and factual, that support comprehensively revisiting and clarifying the unhelpful Houchins standard. Legally, the landscape has changed because (1) the Court has recognized a First Amendment right to observe every critical phase of the criminal trial process, and (2) an evolving body of caselaw recognizes the right to record government employees (especially law enforcement officers) doing official business on public property.  Factually, the landscape has changed because of the well-documented problem of misuse of law enforcement authority against people of color, including within jails, which has shaken public confidence in the justice system and provoked calls for greater transparency and accountability.  These developments, the Article concludes, call for revisiting seemingly settled assumptions that prevent journalists and inmates from invoking the First Amendment to challenge even grossly overreaching jail policies that suppress whistleblowing speech.

March 11, 2022 in Prisons and prisoners | Permalink | Comments (0)

March 10, 2022

Jussie Smollett sentenced to 150 days in jail, years of probation, $120,106 in restitution and $25,000 fine for faking attack

In this post a few months ago, I asked "Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?".  As this new AP article reports, we now know the answer to this question is "nope." Here are some details:

Jussie Smollett loudly maintained his innocence Thursday after a judge sentenced the former “Empire” actor to 150 days in jail for lying to police about a racist and homophobic attack that he orchestrated himself. Cook County Judge James Linn ordered that Smollett’s county jail sentence begin immediately following the hearing.

Smollett didn’t make a statement when offered the opportunity earlier in the afternoon but maintained that he was innocent after Linn issued his sentencing decision. He also insisted that he was not suicidal, suggesting that “if anything happens” in jail, he did not take his own life....

The judge also sentenced Smollett to 30 months of felony probation and ordered that he pay $120,106 in restitution to the city of Chicago and a $25,000 fine.

Smollett’s dramatic reaction capped an hourslong sentencing hearing. Special prosecutor Dan Webb asked Linn to include “an appropriate amount of prison time” when sentencing the actor for his conviction. Smollett’s attorneys asked the judge to limit the sentence to community service, arguing that he had already been punished by the criminal justice system and damage to his career. Family members echoed those comments....

Several supporters spoke about worries that Smollett would be at risk in prison, specifically mentioning his race, sexual orientation and his family’s Jewish heritage.

Linn said he did consider those requests for mercy, along with Smollett’s prior work and financial support of social justice organizations. But Linn also excoriated Smollett as a narcissist and pronounced himself astounded by his actions given the actor’s multiracial family background and ties to social justice work. “For you now to sit here, convicted of hoaxing, hate crimes ... the hypocrisy is just astounding,” Linn said....

Smollett faced up to three years in prison for each of the five felony counts of disorderly conduct — the charge filed for lying to police — of which he was convicted. He was acquitted on a sixth count. But because Smollett does not have an extensive criminal history and the conviction is for a low-level nonviolent crime, experts did not expect him to be sent to prison.

Thursday’s sentencing could be the final chapter in a criminal case, subject to appeal, that made international headlines when Smollett, who is Black and gay, reported to police that two men wearing ski masks beat him, and hurled racial and homophobic slurs at him on a dark Chicago street and ran off. In December, Smollett was convicted in a trial that included the testimony of two brothers who told jurors Smollett paid them to carry out the attack, gave them money for the ski masks and rope, instructed them to fashion the rope into a noose. Prosecutors said he told them what racist and homophobic slurs to shout, and to yell that Smollett was in “MAGA Country,” a reference to the campaign slogan of Donald Trump’s presidential campaign.

March 10, 2022 in Celebrity sentencings | Permalink | Comments (7)

Highlighting some disparities identified in recent "Dealing in Lives" report on federal life sentences for drug offenses

In this post a few days ago, I spotlighted this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper, titled "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020," is the focal point of this new Filter article titled "Federal Life Sentences for Drugs: Unconscionable and Massively Biased." Here is some of the coverage:

Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities.  Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent).  Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.

In addition, many people were punished more harshly for wanting to exercise their constitutional rights.  As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”

When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right.  Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes.... 

Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts — three in Florida, one in Virginia and one in South Carolina — accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period.  For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.

How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law.  That district also has some of the harshest sentencing outcomes in the country.

I am grateful to see this engagement with some of the data in the new report, and there are so many other interesting findings therein.  As mentioned previously, a number of the paper's key findings (and visuals) can be viewed at this DEPC webpage.

Prior related post:

March 10, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (12)

Vera Institute of Justice provides very latest prison data with "People in Prison in Winter 2021-2022"

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Vera's latest effort is "People in Prison in Winter 2021-22," and this press release provide context and an overview: 

Despite continued calls to release people from prisons in response to COVID-19, the total number of people in prisons declined by a mere 1.1% between December 2020 and December 2021 according to People in Prison in Winter 2021-2022, a report released today by the Vera Institute of Justice.  The winter iteration of this report highlights that, in contrast to the uniform declines of 2020, the number of people incarcerated in two out of five of the nation’s prison systems are trending upward....

While prison incarceration remains 16 percent lower than pre-pandemic levels, data shows a troubling reversal in many states.  By year-end 2021, 19 states and the federal government increased the number of people incarcerated in prisons.  Two states with large declines in their prison populations in 2020 had the largest increases in 2021 – North Dakota’s prison population declined 21.9 percent in 2020 but increased 20.6 percent in 2021, and West Virginia saw a 43.6 percent decline in 2020, then 12.9 percent growth in 2021.  The nation has not seen this kind of growth in decades: The single-year increase in North Dakota is higher than any state’s single-year increase since 1997, and the number of states with increases of more than 5 percent is the largest since 1999.

In contrast, other states continued to decrease their prison populations – Washington State’s total prison population declined 14 percent in 2021, after declining 18 percent the previous year. New York was down 10.7 percent after declining 20.8 percent in 2020, Arizona was down 10.2 percent in 2021 after a 11.1 percent decrease in 2020.

The overall number of people incarcerated by federal agencies also rose 5 percent between December 2020 and December 2021.  The number of people in Bureau of Prisons (BOP) custody rose 3.6 percent, the number of people detained for the United States Marshals Service (USMS) rose 1 percent, and Immigration and Customs Enforcement (ICE) detention jumped 33.7 percent.

“While some states made policy choices to reduce prison populations during the pandemic, the data show unmistakable backsliding by many U.S. states and the federal government,” wrote Jacob Kang-Brown, Senior Research Associate for Vera and author of the report. “The best evidence demonstrates that releasing more people from prison can help mitigate the public health harms of incarceration without jeopardizing public safety.”

March 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission releases big new report titled "Compassionate Release: The Impact of the First Step Act & COVID-19 Pandemic"

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The US Sentencing Commission indicated that is was working on a big new compassionate release report, and I am pleased to see from my email inbox that it was released today.  Here is the text about the report that was in the email I received:

The United States Sentencing Commission (“Commission”) today released a new report that examines trends in compassionate release during fiscal year 2020 in light of the enactment of the First Step Act of 2018, and the COVID-19 pandemic.

Senior U.S. District Judge Charles R. Breyer, Acting Chair of the Commission, stated “I am pleased that the Commission has issued this comprehensive report on compassionate release trends in fiscal year 2020. This report builds on the Commission’s significant work in this area, including a report on the first year of implementation of the First Step Act and the Commission’s previously released quarterly data reports analyzing motions for compassionate release.”

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019 — the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”

This full USSC report, available here, runs 86 pages and I hope to find time in the coming days to highlight a variety of findings from the report. The USSC has created this two-page infographic about the report with a few data highlights, and this USSC webpage provides an overview and an extended list of "key findings."

Though I am VERY excited to dig into this report and look forward to exploring what lessons these data may have for any possible revision of guidelines and practices related to compassionate release, I am a bit disappointed that this new USSC report only covers developments and data through September 2020.  Though these data capture the many developments through the first part of the COVID pandemic, there still had then not been any significant circuit rulings about the operation of compassionate release and other USSC data runs have detailed that there were an additional 10,000 motions and about 1500 addition compassionate release grants in just the six months after September 2020.  I fully understand why the USSC could not do this kind of detailed report on all cases up to the present, but everyone should not lose sight of the fact that this new report is already somewhat dated because it only captures data through September 2020.

March 10, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

March 9, 2022

"Does Mens Rea Matter?"

The title of this post is the title of this fascinating new article now available via SSRN authored by Matthew Mizel, Michael Serota, Jonathan Cantor and Joshua Russell-Fritch. Here is its abstract:

Does mens rea matter to the criminal legal system?  Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute.  We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g).  Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g) — whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories — as a question of fact for which an actor could be held strictly liable.  Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month.

We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion.  At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it.  All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.

March 9, 2022 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Some notable headlines about the state and possible fate of capital punishment in the US

I have seen an array of notable news and commentary concerning the administration of the death penalty this week, enough to justify this round up:

From The Atlantic, "A Good Man, At One Time: How a Mississippi inmate became an advocate for his own execution"

From CommonWealth, "Tsarnaev again faces death penalty, but support for capital punishment dropping"

From the Death Penalty Information Center, "Tennessee Sets Three Execution Dates for Most-in-Nation 5 Pending Executions in 2022"

From The Hill, "Reinstatement of marathon bomber's death sentence exposes Democrats' need to hide radicalism"

From The Intercept, "RUSH TO JUDGMENT: Is Texas Sending Melissa Lucio to Die for a Crime That Never Happened?"

From the Ohio Capital Journal, "Ohio gets closer to abolishing death penalty"

From the New York Times, "This Sedative Is Now a Go-To Drug for Executions. But Does It Work?"

From Verdict, "As Oklahoma Goes, So Goes America’s Death Penalty?"

From Vox, "Why some Republicans are turning against the death penalty"

March 9, 2022 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

"Prosecutorial Nonenforcement and Residual Criminalization"

The title of this post is the title of this notable new article on SSRN authored by Justin Murray.  Here is its abstract:

In recent years a small but influential group of locally elected prosecutors committed to criminal justice reform have openly refused to enforce various criminal laws — laws prohibiting marijuana possession, sentence enhancements, laws authorizing the death penalty, and much more — because they see those laws as unjust and incompatible with core reform objectives.  Condemned by many on the political right for allegedly usurping the legislature’s lawmaking role and praised by many on the left for bypassing dysfunctional state legislatures in favor of local solutions, these prosecutorial nonenforcement policies are commonly said to have the same effect as nullifying, or even repealing, the laws that they leave unenforced.

Yet this idea — the idea that prosecutorial nonenforcement is functionally equivalent to the nullification or repeal of statutory law — is deeply mistaken.  This Essay shows why.  It uncovers a number of underappreciated mechanisms through which criminal laws may continue to get enforced or to structure social relations despite a district attorney’s policy against enforcing them, producing what this Essay calls residual criminalization.  The Essay also explains why grappling with this phenomenon of residual criminalization can help reframe ongoing discussions concerning prosecutorial nonenforcement by, on one hand, deflating certain prominent objections to nonenforcement and, on the other hand, revealing that nonenforcement cannot by itself satisfy criminal justice reformers’ deeper aspirations.

March 9, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

March 8, 2022

Rounding up some accounts of the latest ACCA wackiness in Wooden

I hope to find some time in the coming days to do some original commentary about the Supreme Court's unanimous ruling in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  I see interesting, telling and problematic aspects to all the opinion in the case, but for now I need to be content here to round up some of what others are saying:

From Law360, "'Night Of Crime' Burglar Is No Career Criminal, Justices Say"

From Slate, "Why All Nine Justices Overturned a Ludicrously Cruel Prison Sentence"

From SCOTUSBlog, "Perhaps defining an “occasion” is not so difficult after all"

From The Volokh Conspiracy, "Justices Spar Over How to Interpret the Armed Career Criminal Act"

March 8, 2022 in Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?

As reported in this AP piece, headlined "1st trial in Capitol riot ends with conviction all counts," we now have  a new conviction in the January 6 riot cases that can perhaps reveal some of the sentencing consequences of going to trial rather than pleading guilty.  Here are the basic details:

A Texas man was convicted on Tuesday of storming the U.S. Capitol with a holstered handgun, a milestone victory for federal prosecutors in the first trial among hundreds of cases arising from last year’s riot.

A jury also convicted Guy Wesley Reffitt of interfering with police officers who were guarding the Capitol on Jan. 6, 2021, and of obstructing justice for threatening his two teenage children if they reported him to law enforcement after the attack. Jurors deliberated about three hours and convicted him on all counts.

The verdict could be a bellwether for many other Capitol riot cases. It could give Justice Department prosecutors more leverage in plea negotiations and discourage other defendants from gambling on trials of their own. Reffitt, 49, of Wylie, Texas, didn’t testify at his trial, which started last Wednesday. He didn’t visibly react to the verdict, but his face was covered by a mask.

During the trial’s closing arguments on Monday, Assistant U.S. Attorney Risa Berkower told jurors that Reffitt drove to Washington, D.C., intending to stop Congress from certifying President Joe Biden’s electoral victory.  Reffitt proudly “lit the fire” that allowed others in a mob to overwhelm Capitol police officers near the Senate doors, the prosecutor said.

Reffitt was not accused of entering the Capitol building.  Defense attorney William Welch said there is no evidence that Reffitt damaged property, used force or physically harmed anybody.  The defense lawyer urged jurors to acquit Reffitt of all charges but one: He said they should convict him of a misdemeanor charge that he entered and remained in a restricted area.

Reffitt faced a total of five counts: obstruction of an official proceeding, being unlawfully present on Capitol grounds while armed with a firearm, transporting firearms during a civil disorder, interfering with law enforcement officers during a civil disorder, and obstruction of justice.

Jurors saw videos that captured the confrontation between a few Capitol police officers and a mob of people, including Reffitt, who approached them on the west side of the Capitol. Reffitt was armed with a Smith & Wesson pistol in a holster on his waist, carrying zip-tie handcuffs and wearing body armor and a helmet equipped with a video camera when he advanced on police, according to prosecutors. He retreated after an officer pepper sprayed him in the face, but he waved on other rioters who ultimately breached the building, prosecutors said.

Before the crowd advanced, Reffitt used a megaphone to shout at police to step aside and to urge the mob to push forward and overtake officers. Assistant U.S. Attorney Jeffrey Nestler said Reffitt played a leadership role that day. During last Friday’s testimony, prosecutors zoomed in on a video image of Reffitt at the Capitol. FBI Special Agent Laird Hightower said the image shows “a silvery metallic linear object” in a holster protruding from under Reffitt’s jacket as he leaned forward....

Reffitt’s 19-year-old son, Jackson, testified last Thursday that his father threatened him and his sister, then 16, after he drove home from Washington. Reffitt told his children they would be traitors if they reported him to authorities and said “traitors get shot,” Jackson Reffitt recalled. Jackson Reffitt, then 18, said the threat terrified him. His younger sister, Peyton, was listed as a possible government witness but didn’t testify....

More than 750 people have been charged with federal crimes related to the riot.  Over 220 of them have pleaded guilty, mostly to misdemeanors. and over 110 of them have been sentenced. Approximately 90 others have trial dates.

This AP description of Reffitt's behaviors makes him sound like a more serious offender that some of those prosecuted for Jan 6 activities. but also less serious than some others.  I will be interested to see how guideline calculations and sentencing arguments play out for Reffitt in the months ahead.

Some of many prior related posts:

March 8, 2022 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13)

A deep dive into federal prison struggles in response to the COVID pandemic

NPR has this lengthy new piece headlined "As COVID spread in federal prisons, many at-risk inmates tried and failed to get out," that effectively chronicles some of the ineffectiveness of the federal response as COVID worked its way through its massive prison systems.  Here are just a few snippets from the piece:

As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons.  Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.

The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic.  Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.

Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found.  Many of them seemed to sense their fate — and had tried to get out.  And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus....

It's difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.  "Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late," said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif....

The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority.  After [then Attorney General] Barr urged the use of home confinement, the BOP added its own criteria to the attorney general's list.

Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic.  As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.

It's unclear how many more people might have been eligible for CARES Act home confinement yet were not released. "CARES Act home confinement is, frankly, a black box," [Allison] Guernsey, of the University of Iowa, said. But she feels certain "we could have been releasing so many more people during the pandemic and we just chose not to."

March 8, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

March 7, 2022

"Plea Bargaining and Mass Incarceration"

The title of this post is the title of this recent paper authored by Albert Alschuler available via SSRN.  Here is its abstract:

The United States, which imprisons a higher proportion of its population than any other nation, is also the nation most dependent on plea bargaining.  This Article shows that plea bargaining was a major cause of mass incarceration. Bargaining not only increased the number of people sent to prison but also produced harsher sentences than would have existed in its absence.

American incarceration rates rose sharply just after the Supreme Court and the American Bar Association declared plea bargaining legitimate and beneficial. This Article shows how courts and legislatures then enhanced the power of prosecutors and how prosecutors used their power to charge more people with crimes, induce more guilty pleas, exact broader waivers of rights, and obtain more severe sentences.

March 7, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling

The US Supreme Court handed down one opinion this morning, and it is a win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Here is how Justice Kagan's opinion for the Court gets started:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary — one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA).  That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” 18 U.S.C. §924(e)(1).  The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously.  The answer is no.  Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.

Interestingly, this ruling also generated four distinct concurrences (some quite short, some longer). Because I need to be off-line most of the rest of today, I will not have a chance to comment on these opinions right away. But I hope commenters might help me try to map out how many hundreds (thousands?) of cases this ruling could impact.

March 7, 2022 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (13)

March 6, 2022

"Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020"

I am extraordinarily pleased and proud to be able spotlight this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper shares the title of this post, and the work is an extraordinary compilation and examination of federal drug life sentence.  Here is the paper's abstract:

The “tough on crime” era of the 1980’s and 1990’s ushered in a growing reliance on prisons, the ratcheting up of sentence lengths, and a broader expansion of the criminal justice system.  Life sentences, historically rarely imposed, became increasingly commonplace in the 1980s through the 2000s, contributing to the ballooning imprisoned population. While there are growing concerns about the increased use of life sentences in the United States, there has been limited empirical study of these sentences.  This report seeks to fill this gap with a particular focus on the federal sentencing system and the imposition of life sentences for drug offenses.  Specifically, the current report documents federal life sentences imposed for drug trafficking over the last three decades, taking a closer look at the defendant and case-specific characteristics, and providing a descriptive account of the factors that are associated with those sentenced to life in prison in federal courts.

At this DEPC webpage, a number of the paper's key findings (and visuals) can be viewed.  Here is the first one:

Key Finding 1:  After record highs in the 1990s and 2000s, the number and rate of life and de facto life sentences imposed have declined significantly over the last decade.

March 6, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment | Permalink | Comments (3)