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April 2, 2022

"The Trouble with Time Served"

The title of this post is the title of this new article recently posted to SSRN and authored by Kimberly Kessler Ferzan. Here is its abstract:

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial.  In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice.  In fact, however, crediting detainees for time served is perverse.  It harms the innocent.  A defendant who is found not guilty, or whose case is dismissed, gets nothing.  Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive.  Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions.  The bottom line is this: Time served is not a panacea.  To the contrary, it contributes to criminal justice pathologies.

This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted.  The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds.  Time served should be abandoned.  Detainees should be financially compensated instead.  Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms.  Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.

April 2, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

April 1, 2022

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

April 1, 2022 in Clemency and Pardons, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.

April 1, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

March 31, 2022

BJS releases new report on "Correctional Populations in the United States, 2020 – Statistical Tables"

I just noticed that last week the Bureau of Justice Statistics released a new accounting of correctional populations in this document titled ""Correctional Populations in the United States, 2020 – Statistical Tables." The first page of the 14-page document provides this overview and "highlights":

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails. 

  • About 7 in 10 persons under correctional supervision were supervised in the community (3,890,400) at yearend 2020, while about 3 in 10 (1,691,600) were incarcerated in a state or federal prison or local jail.
  • The decline in the correctional population during 2020 was due to decreases in both the community supervision population (down 276,700 or 6.6%) and the incarcerated population (down 294,400 or 18.9%).
  • From 2010 to 2020, the correctional population decreased 22.4% (down 1,588,400 persons).
  • From 2010 to 2020, the decrease in the probation population accounted for 63.1% of the total decline in the correctional population.
  • Among persons under community supervision at yearend 2020, the majority were on probation (3,053,700), while a smaller portion were on parole (862,100).
  • During the past decade, the parole population was the only segment of the correctional population to increase, growing from 11.9% of those under correctional supervision in 2010 to 15.7% in 2020.
  • At yearend 2020, about 2,140 per 100,000 adult U.S. residents were under correctional supervision.
  • The incarceration rate dropped each year during the last decade, from 960 per 100,000 adult U.S. residents at yearend 2010 to 660 per 100,000 at yearend 2020.

March 31, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (4)

New short FAMM memo makes the case for the EQUAL Act

The folks at FAMM today released this short memo titled "The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences."   Though only two pages, the memo cover a lot of ground, and here are some of its concluding points (with cites removed):

The crack-powder disparity fosters and entrenches racial inequality

  • In 2019, 81% of people convicted of crack cocaine crimes were Black, even though white and Hispanic people have historically accounted for over 66% of crack users.
  • Before Congress established the crack-powder disparity in 1986, the average federal drug sentence for Black people was 11% higher than for whites. Just four years later, the average federal drug sentence for Black defendants was 49% higher.
  • The U.S. Sentencing Commission found that, in the case of crack cocaine penalties, “perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system.”

Passing the EQUAL Act would reunite families sooner and protect taxpayers

  • If enacted, the EQUAL Act would reduce sentences for people serving time for crack offenses by an average of just over six years. This change alone would cut a total of 46,500 years off sentences.
  • For those convicted after the EQUAL Act passes, their average sentence will be reduced by 2.5 years. This change will reduce total sentences over the next ten years by 21,300 years.
  • By reducing unnecessary prison time by an estimated 67,800 years for people, 91 percent of whom are Black, the EQUAL Act will reunite thousands of families sooner and save hundreds of millions of taxpayer dollars in the first decade alone.

A few of many prior posts on the EQUAL Act:

March 31, 2022 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (1)

An effective (though incomplete) review of current GOP views on criminal justice reform

Li Zhou has this lengthy new Vox piece about the state of GOP politics on criminal justice issues headlined "The Republican Party is still fractured on criminal justice reform."  The piece is worth a full read, and here are excerpts:

The rhetoric in Jackson’s hearing and in broader GOP messaging have seemed like a departure from the focus on criminal justice reform that the party had as recently as 2018, when the majority of Senate Republicans backed sentencing changes for nonviolent offenders in the First Step Act.  The party back then was eager to show it had made progress on an issue that arose from Congress’s efforts to crack down on crime decades ago.  (Many of these efforts notably excluded violent offenders or sex offenders that Jackson was spuriously accused of going easy on.)

There are some Republicans who are reluctant to evangelize criminal justice reforms now, advocates say, since increases in crime have become a GOP talking point.... “I think your average conservative, or average Republican, may have supported the First Step Act, but I have the impression that the average conservative has backed off from where they were,” says Clark Neily, a senior vice president of legal studies at the Cato Institute.

Experts emphasize, however, that the most aggressive moments in the hearing are not indicative of how open a segment of Republicans still is to important but limited criminal justice reforms. Just last week, 10 Republicans signed on to cosponsor the Equal Act, legislation that would reduce the sentencing disparities between crack cocaine and powder cocaine.  The legislation — which would make penalties the same for the two substances — has yet to be considered on the floor but could pass with the GOP support it has....

For years, the party has been fractured on the subject with senators like Tom Cotton (R-AR) opposed to virtually any reforms, while others like Sens. Rand Paul (R-KY), Mike Lee (R-UT) and Tim Scott (R-SC) have led efforts for sentencing reforms for nonviolent drug offenses and police reforms....

At the state and local level, many Republican officials have also pushed back on progressive prosecutors, policies like changes to cash bail, and reduced prosecutions for low-level offenses. “I think they’re often scared that if … crime continues to increase, no one wants the blame placed on them,” says Jillian Snider, the policy director for the criminal justice and civil liberties team at R Street Institute.

There’s also the Trump factor.  During his presidency, Trump’s support of the First Step Act helped to get Republicans who were on the fence on board. Without his advocacy on the issue now, some lawmakers are likely less open to this idea.

Because there are so many moving part to this story, even a strong press piece cannot cover the ground completely.  For example, the piece does not discuss the conventional wisdom that the slogan "abolish the police" proved extremely unpopular with voters in the 2020 election cycle, nor does it engage much with all sorts of interesting and diverse political reform dynamics at the state level (especially on topics like marijuana reform and record clearing).  Still, this piece reflects a notable moment in the ever-changing ebb and flow over crime policy and crime politics.

March 31, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

March 30, 2022

New report claims many successes attributable to Proposition 47's sentencing reductions in California

The Center for Juvenile and Criminal Justice has this notable new report on developments in California titled "Proposition 47: A $600 Million Lifeline to California Communities." Here is the 10-page report's introduction (with cites preserved):

Proposition 47 (Prop 47), one of the most significant criminal justice reforms in California history, has now been in effect for more than seven years.  The initiative, which passed with nearly 60 percent of the vote in 2014, sought to interrupt cycles of frequent incarceration and redress decades of overly punitive sentencing by reclassifying several low-level drug and property offenses from potential felonies to misdemeanors (SOS, 2014; 2014a).  The result has been a marked decline in California’s incarcerated population (Bird et al., 2016; 2018; Graves, 2020).

A key provision of Prop 47 was the reinvestment of state dollars from prisons into community-based prevention programs.  This year, as part of his Fiscal Year (FY) 2022-23 budget proposal, Governor Gavin Newsom announced an additional $150 million in prison savings attributed to Prop 47 (DOF, 2022).  This latest investment would increase total funding to nearly $600 million.

Proposition 47 has been a lifeline to vulnerable Californians. This support has proved critical as California now faces an unprecedented set of challenges.  These include significant disruption and loss of life due to COVID-19, a reckoning over police violence against people of color, sharp increases in the cost of living, and rising rates of homelessness and drug overdose.  Most recently, there are changing public narratives around crime and the impacts of justice reform.  To date, Prop 47 has:

1. Coincided with a period of record-low crime in California (CJCJ, 2020; 2020a; 2021; 2021a).

2. Reduced unconstitutional overcrowding in state prisons (Graves, 2020).

3. Offered resentencing, release, and/or record change opportunities to thousands of Californians.

4. Lessened racial disparities in California’s criminal justice system (Lofstrom et al., 2020).

5. Reinvested more than half a billion dollars into local programs that address the root causes of incarceration for as many as 40,000 people by reducing homelessness and boosting employment.

March 30, 2022 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

"Free-World Law Behind Bars"

The title of this post is the title of this new article authored by Aaron Littman just published in the Yal Law Journal.  Here is its abstract:

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, “free-world” regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

March 30, 2022 in Prisons and prisoners | Permalink | Comments (2)

March 29, 2022

Another review of varying concerns about sentencing equity for January 6 rioters and others

This new Washington Post article reviews anew the enduring question of whether and how January 6 rioters are getting equitable treatment at sentencing.  The article is fully headlined "Judge: Nonviolent Jan. 6 defendants shouldn’t get ‘serious jail time’: A Trump appointee disputes that Capitol breach cases are unique, stirring a debate over how to hold individuals accountable in mass crime." I recommend the full piece, and here are excerpts:

A federal judge criticized U.S. prosecutors for seeking jail time for some nonviolent Donald Trump supporters in the Jan. 6 Capitol breach but not for left-wing activists who protested the 2018 Senate confirmation of Trump Supreme Court nominee Brett M. Kavanaugh. “I know that the government believes that the January 6 cases are sui generis” — or one of a kind — “and therefore can’t be compared to other cases. But I don’t agree,” said U.S. District Judge Trevor N. McFadden, a 2017 Trump appointee. He called the riots the latest in Washington’s history of high-profile and politically divisive mass demonstrations....

McFadden spoke out Wednesday in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Tex., who pleaded guilty to misdemeanor trespassing.  Prosecutors with the U.S. attorney’s office for Washington asked the judge to sentence Cudd to 75 days in jail and one year probation. Instead, he imposed two months’ probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the liberal advocacy group Code Pink....

McFadden’s outspoken criticism of the Justice Department put him out of step with 18 other federal judges who have sentenced Jan. 6 defendants in the U.S. District Court in Washington. Fifteen of those judges have imposed jail time in misdemeanor cases, and many of them, like McFadden, previously served as federal prosecutors in the District....

While one or two other judges like McFadden have balked at sentencing Jan. 6 misdemeanor offenders to jail, most have pushed the other way, criticizing prosecutors for charging many participants similar to nonviolent protesters who routinely disrupt congressional hearings or simple trespassers....

In responding to similar arguments by Cudd attorney Marina Medvin in court, Assistant U.S. Attorney Laura E. Hill rejected the comparison. “January 6 was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6 that was not present on the days of the Kavanaugh protests.  The Kavanaugh protesters were escorted out of the Capitol and the hearing continued. Congressmen and congresswomen were not required to evacuate the building. … They didn’t have to pause proceedings and continue into the early morning hours of the next day, after the building was secure.”

Judges appointed by presidents of both parties have condemned the siege of the Capitol as a unique destabilizing event and weighed jail terms as a way to deter defendants and others from a repeat.  “When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble,” U.S. District Judge Randolph D. Moss, an Obama appointee, said last summer.  “The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.”

“Many politicians are writing a false narrative about what happened. I think they are misleading people,” U.S. District Judge Thomas F. Hogan, a Reagan appointee, said in another case this month.  Warning that attempting to whitewash or play down events could lead to future violence, Hogan called Jan. 6 an “unforgivable” day that will “affect this country for many years.”

Prosecutors say they are trying to treat people fairly based on their individual conduct.  But they also want to hold all accountable for participating in a mass crime in which the crowd made mob violence possible, emboldening and facilitating those who engaged in violence, overwhelmed police and escaped arrest by finding safety in numbers.

Some of many prior related posts:

March 29, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (7)

Split North Carolina court finds some felon disenfranchisement violates state constitution

As reported in this local article, "North Carolina’s law banning many people with felony records from voting after they get out of prison is unconstitutional, a state court ruled Monday."  Here is more (with a link to the lengthy ruling):

Until now, state law allowed people with felony convictions to vote only once they finish their sentence.  That didn’t only include their prison sentence; it also included probation or parole, which sometimes can last for years after someone is released from prison.

Monday’s ruling, first reported by Carolina Public Press, changes that.  Now — pending a potential appeal of the ruling — people with criminal records can vote once they have rejoined society and are no longer behind bars.  The judges wrote that “if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina."

It wasn’t immediately clear if Republican lawmakers, who have defended the law so far, will appeal again.

The law is unconstitutional for generally violating people’s rights, the judges wrote Monday, but also for being explicitly targeted at Black people. Specifically, they wrote that the law “was enacted with the intent of discriminating against African American people and has a demonstrably disproportionate and discriminatory impact.”...

The News & Observer had previously reported that around 55,000 people might be affected by such a change, after an earlier ruling and subsequent appeal in this same case.  The new standard, that people can vote once they leave prison, is the most common practice nationwide, according to the National Conference of State Legislatures.  Two states, Maine and Vermont, let people vote even while in prison.  But most have at least some restrictions, with varying degrees of severity.

The ruling was 2-1 by the panel of three superior court judges assigned to the case. Judge John Dunlow, a Republican from Granville County, dissented.  The two in the majority were Judge Keith Gregory, a Wake County Democrat, and Judge Lisa Bell of Mecklenburg County, who is unaffiliated.

A small part of the law was already struck down just before the 2020 elections, The News & Observer reported, on the basis that in some cases the requirement still functioned similar to a Jim Crow-era poll tax — since some people remained on probation or parole simply for being unable to pay court fines or other costs.

March 29, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

US House overwhelmingly votes, by a margin of 405-12, for "Prohibiting Punishment of Acquitted Conduct Act of 2021"

I continue to believe that federal sentencing reforms can continue to be an arena for bipartisan achievements in Congress (as we saw with the Fair Sentencing Act during the Obama Administration and with the FIRST STEP Act during the Trump Administration).  Of course, the recent SCOTUS confirmation hearings provided a reminder that some legislators on some criminal justice issues are going to favor partisan attacks over responsible discourse.  Nevertheless, my hope springs eternal and news from Congress last night bolsters this hope. 

Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

I am so very pleased to see this very modest bill, but still very meaningful proposal, move forward and receive such overwhelming support from Representatives in both parties.  I hope this legislation can get a vote in the Senate ASAP.  

A few of many, many, many prior related posts:

March 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

March 28, 2022

"Decarceration’s Inside Partners"

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

This Article examines a hidden phenomenon in criminal punishment.  People in prison, during their incarceration, have made important, sometimes extraordinary, strides toward reducing prison populations.  In fact, stakeholders in many corners, from policymakers to researchers to abolitionists, have harnessed the legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls that were once considered impossible.  Despite this outside use of inside moves, legal scholars and reform-minded actors have disregarded the potential of looking to people on the inside as partners in the long-term project of decarceration.

Building on the change-making agency and revolutionary ideation inside the walls, this Article points the way to a new, alternative approach to decarceration: thinking alongside people banished from the polity.  Criminal law scholars routinely recount their stories but rarely do we consider people held in prison as thought leaders, let alone equal partners, to progress toward a noncarceral state.  Despite conducting extensive research on prisons and those held inside them, legal scholars know — and wonder — tremendously little about the decarceral work, decarceral ideas and “think tanks” that surge behind bars.  The absence of our curiosity reflects and reproduces the ideological work of carceral punishment.

This Article demonstrates that an alternative vision of decarceration that resists this ideological work opens up more promising paths to create the legal and social change that our current moment demands.  It calls on law scholars to find ways to discover, ignite and emancipate more decarceral visions on the inside.  And it argues that, unless we make this challenging shift, we suppress innovative, effective and more conceivable possibilities to radically transform our carceral state.

March 28, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert in Arizona capital case to address state limits on collateral review

The US Supreme Court granted cert in three cases this morning, and one involved a cert petition from a defendant on Arizona's death row.  However, the issue on which SCOTUS granted cert in Cruz v. Arizona is likely only to excite collateral review and habeas fans:

Issue: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

But while this statement of the issue may not seem all that exciting, these paragraphs from this amicus brief in support of cert from Habeas Scholars suggests a lot is at stake here:

Amici urge this Court to grant certiorari — or summarily reverse — to stop Arizona’s use of collateral procedure to discriminate against established constitutional rights.  “[S]tate courts have the solemn responsibility, equally with the federal courts ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States.…’” Steffel v. Thompson, 415 U.S. 452, 460-61 (1974) (quoting Robb v. Connolly, 111 U.S. 624, 637 (1884)). They cannot selectively disregard particular constitutional rights....

This Court’s intervention is both necessary and appropriate.  The Arizona decision results in the clear violation of a federal right, and the Arizona Supreme Court’s violation of the Supremacy Clause itself merits this Court’s intervention. Moreover, there is jurisdiction to review the judgment because the state ground is neither adequate to bar review nor independent of federal law. And because Arizona appears to be a singular outlier in its treatment on collateral review of the federal rights at issue here, correction of this error would not affect the practices of other states. Instead of being disruptive, reversal here would restore the appropriate federal-state balance, in accord with this Court’s Supremacy Clause precedents.

March 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Varying perspectives on Illinois's new prosecutor-initiated resentencing law

A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto).  Here are headlines and links:

From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"

From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"

From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"

Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:

Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.

Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.

Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.

On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.

But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”

“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.

March 28, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

March 27, 2022

"Charging Time"

The title of this post is the title of this new paper now available via SSRN authored by Pamela Metzger and Janet Hoeffel. Here is its abstract:

On the day William Haymon turned 16, it was his 511th day in jail in Mississippi and a prosecutor had yet to formally charge him with a crime.  William is one of thousands of people across the country arrested and jailed for weeks, months, and even years without charges.  In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them.  Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame and distress. Yet this violates no laws; it circumvents no constitutional protections.

To date, there has been no study of the necessity of the extended time period between arrest and charging.  Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss.  In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.

A recent original study reveals that prosecutors’ crushing caseloads, shoddy and inadequate investigative work by police officers, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep.  Extended time in jail risks lives, health, jobs and case outcomes.  Yet we explain how neither the constitutional protections granted to criminal defendants nor statutory provisions provide any remedy at this uncharged stage.  After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in the charging decisions of prosecutors across the country.

March 27, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)