Sentencing Law and Policy

Rounding up some recent commentary for weekend reading

I saw an interesting array of notable commentary at the tail end of this past week, and here is a round up for those with some time this weekend to catch up on some reading:

From The American Conservative, "More People Should Get Jury Duty"

From The Atlantic, "Why California Wants to Recall Its Most Progressive Prosecutors"

From Forbes, "Second Chance Month Brought Needed Attention To Justice-Impacted Individuals. Now The Real Work Begins."

From The Hill, "Democrats cannot blow their marijuana midterm opportunity"

From The Philadelphia Citizen, "Ideas We Should Steal: More Public Defense Spending"

From Slate, "A Federal Appeals Court Just Devastated the Power of Judges to Reject Bad Plea Deals"

From USA Today, "One of us was a prisoner. The other was a guard. It's clear to both of us we need reform"

From USA Today, "Progressive prosecutors are fixing a broken system. Backlash against them is misguided."

From The Week, "This is not the major criminal justice reform Biden promised"

GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Regular readers should be aware from my prior postings that Congress seems poised to pass the EQUAL Act to entirely eliminate the crack and powder cocaine sentencing disparity.  This disparity and its racialized impacts have been an ugly part of the federal sentencing landscape for over 35 years (when Congress first created the 100:1 disparity), and the Fair Sentencing Act of 2010 only partially reduced the disparity (down to 18:1).  But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act to end disparity last year, and after the Senate version had secured 11 GOP sponsors, I was hopeful the powder and crack cocaine disparity could and would finally be ended this year.

But, this press release from Senator Chuck Grassley's office, titled "Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend," now has me concerned that a competing bill might now muck up the works.  Here are the details from the release:

Sens. Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey Graham (R-S.C.) today introduced the SMART Cocaine Sentencing Act, which will reduce the sentencing disparity between crack and powder cocaine offenders tried in federal courts. The legislation aims to make sentencing fairer while also preserving the ability of courts to keep those most likely to reoffend off the street.

“I’ve worked on this issue for many years. I cosponsored the 2010 legislation led by Senators Durbin and Sessions to reduce the disparity in sentencing from 100-to-1 to 18-to-1.  It’s high time to do more to address this important issue and make our criminal code more just and fair.  Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties.  Powder cocaine is being trafficked across the border in historic volumes, so we also need to take precautions that ensure these traffickers also face justice for spreading poison through our communities,” Grassley said....

This sentencing disparity between crack and powder cocaine offenders has had a disparate impact on communities of color across the country.  Reducing this disparate impact is critical, but must be thoughtfully enacted to prevent likely reoffenders from returning to communities just to violate the law again.

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses.  This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses.  According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.  Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses. 

The SMART [Start Making Adjustments and Require Transparency in] Cocaine Sentencing Act will reduce the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1. It reduces the volume required to trigger 5-year mandatory minimum sentences for powder cocaine from 500 grams to 400 grams, and from 5 kilograms to 4 kilograms for 10-year mandatory minimum sentences.  For crack cocaine, the volume triggering a 5-year mandatory sentence is increased from 28 grams to 160 grams; the volume for the 10-year mandatory sentence is lifted from 280 grams to 1,600 grams.

Critically, the SMART Cocaine Sentencing Act also requires an attorney general review and certification process for any retroactive sentencing adjustments. It provides for new federal research from the Drug Enforcement Administration and the Department of Health and Human Services regarding the lethality and addictiveness of these substances as well as what violence is associated with cocaine-related crimes. The legislation also requires a new report from the USSC on crack and powder cocaine offenses, including data on recidivism rates....

Full legislative text of the SMART Cocaine Sentencing Act can be found HERE.  

Kevin Ring has an effective Twitter thread here criticizing various aspects of this proposal, which he calls the "The Grassley Unequal Act."  I hope that this bill does not impede progress on the EQUAL Act, but the fact that the EQUAL Act has not become law already make me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?

UPDATE:  This new New York Times article, headlined "Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress," details why the EQUAL Act may not get to the finish line in this Congress.  Here are excerpts:

[W]ith control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.

Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.  “I assume the topic opens itself pretty wide,” said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles....

Though Mr. Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor.  Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year....

Its supporters say that they recognize the difficulties but believe that it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.  “Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”

The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November....  Senator Mitch McConnell, the Kentucky Republican and minority leader, this week reprised his criticism of Judge Jackson and attacked Mr. Biden for having issued his first round of pardons and commutations, including for those convicted of drug crimes.  “They never miss an opportunity to send the wrong signal,” he said of Democrats.

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.  “My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” Mr. Cotton said.

The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.  “Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Mr. Grassley, the top Republican on the Judiciary Committee.

Sponsors of the Equal Act say they intend to push forward and remain optimistic that they can overcome the difficulties.  “We’ve got an amazing bill, and we’ve got 11 Republicans and people want to get this done,” said Senator Cory Booker, Democrat of New Jersey and the lead sponsor of the legislation. “My hope is that we are going to have a shot to get this done right now.”

With strong advocates of the EQUAL Act now saying that getting this to the floor of the Senate is "doable" or can "have a shot," I cannot help but think it is quite a long shot this Congress.  Sigh.

New Grid feature take close look at "past and uncertain future of executions in America"

The publication Grid has this terrific new dive into the US death penalty under this full title: "The death penalty: The past and uncertain future of executions in America; Fewer people are being sentenced to death, and concerns about cruelty and racial bias remain, but some states are trying to move ahead with executions anyway."  Though that title reveals some key themes to Grid's overall review, the full coverage is thoroughly engaging because it includes three different reporters unpacking three different "lenses" of the story.  Here are the headlines of each of the pieces:

Legal: "Shifting views of 'cruel and unusual'"

Science: "Medical groups and drug companies push back"

Policy: "Support for executions wanes, but racial bias persists"

In addition to the discussion of the issue through different lenses, the Grid piece has some really cool data graphics.  One sets out the yearly particulars behind this execution factoid: "A majority of all 14,480 recorded executions since 1800 have been by hanging.  About a third have been by electric chair, 1 in 10 by lethal injection and less than 1 percent by firing squad."

Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court"

In this post last week, I noted the great weekly panel series for the month of may titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is to run every Tuesdays at 12noon ET from May 3 through May 24, which means the first panel is scheduled taking place this coming Tuesday, May 3rd.  This first panel is titled " "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court," which means the speakers will focus on incarceration alternatives in the federal courts and the impact of the US Sentencing Commission in their applicability.  Everyone can and should register to attend next week's session or the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this first panel:

Judge Dolly M. Gee, United States District Judge of the United States District Court for the Central District of California, CASA Program

Raul Ayala, Deputy Federal Public Defender at Office of the Federal Public Defender, CASA Program

Judge Leo Sorokin, District Court Judge, District of Massachusetts, RISE Program

Chris Dozier, NAPSA Federal Director, Retired Chief U.S. Pretrial Services Officer

And here is a run-down of the future panels:

State Sentencing Commissions Work Toward Decarceration (Tuesday, May 10 12pm ET)

Sentencing Review and Reduction: Open Questions and Next Steps for the Commission (Tuesday, May 17 12pm ET)

Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET)

Prior related post:

• Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"

"Criminal Acts and Basic Moral Equality"

The title of this post is the title of this new paper on SSRN authored by John Humbach.  Here is its abstract:

Modern criminal justice presupposes that persons are not morally equal.  On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds.  Yet, there is scant logical or empirical basis for the law’s supposition that offenders are morally inferior.  The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them.  But this reasoning rests on the assumption that a person’s mental states, such as intentions, can cause physical effects (bodily movements)— a factual assumption that is at odds with the evidence of neuroscience and whose only empirical support rests on a fallacious logical inference (post hoc ergo propter hoc).  There is, in fact, no evidence that mental states like intentions have anything to do with causing the bodily movements that constitute behavior.  Nonetheless, the mental-cause basis for moral responsibility, though it rests on a false factual inference, has enormous implications for criminal justice policy.

While society must obviously protect itself from dangerous people, it does not have to torment them.  The imperative to punish, a dominant theme of criminal justice policy, is not supported by evidence or logic, and it violates basic moral equality.

Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way

Earlier this week, a Sixth Circuit panel issued a notable ruling in In Re United States of America, No. 21-1318 (6th Cir. April 26, 2022) (available here).  At issue was the behavior of a District Judge who was unwilling to accept a plea agreement with an appeal waiver, and the panel was troubled the district court failed to provide a case-specific account for why a (somewhat limited) waiver was problematic:

What is particularly troubling is that the court’s reasoning would seemingly prohibit every plea agreement containing appeal waivers, regardless of the defendant’s case, the agreement’s charging or sentencing terms, or the parties’ reasons for negotiating those waivers.  We cannot credit the district court’s argument that it engaged in an individualized assessment simply because it inserted the phrase “the circumstances of this case” at various points in its opinion. Without more explanation from the court, such language is mere surplusage....

To summarize, a district court does not possess unrestrained discretion to reject a plea agreement.  It must, among other things, make an individualized assessment of the agreement and predicate its decision on the specific facts and circumstances presented.  Because the district court here failed to do that, this is the narrow circumstance in which the district court abused its discretion.  Accordingly, the United States has a clear and indisputable right to mandamus on this ground.

Some (now dated?) research has highlighted the "uneven practice of trading sentencing concessions for waivers" and that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review."  More generally, I generally agree with the District Court's stated policy concerns with all appeal waivers: "The court explained its belief that appeal waivers 'embargo' trial court mistakes, 'insulate' the government’s conduct 'from judicial oversight,' effectively 'coerce' guilty pleas with offers 'too good to refuse,' and 'inhibit[] the development of the Sentencing Guidelines'.” 

But, even though I think appeal waivers should be viewed as void as against public policy, circuit courts have all regularly upheld various versions of this (government labor-saving) device.  (Early on, eager to limit appeals, many circuits claimed that an appeal waiver limited their jurisdiction to consider an appeal, but eventually they moved away from this anti-textual claim.)  Upon first seeing this Sixth Circuit opinion, I was concerned this panel might assert a judge could never reject an appeal waiver (which prosecutors argued), but the message from the opinion instead is that district judges need to provide an "individualized assessment" in order to do so. 

Prof Carissa Hessick, who has written a great book on plea bargaining, calls parts of the Sixth Circuit panel opinion "bonkers" in this Twitter thread.  She hopes the "Sixth Circuit decides to hear this case en banc and to reverse this terrible panel decision," but I am not holding my breath. 

New timely issue of the Federal Sentencing Reporter explores proposals for structural reform

I am very pleased to now be able to spotlight the latest greatest issue of the Federal Sentencing Reporter, which I helped bring together.  This issues includes many great new articles on an array of federal sentencing topics, and the discussion of two notable federal bills proposing structural changes make the issues especially timely.  My Editor's Observations at the front of the issue is titled "Might Structural Changes Be the Next Step for Federal Sentencing Reform?," and here is an excerpt:

This Issue of the Federal Sentencing Reporter shines a spotlight and provides context for two recent federal bills with a particular focus on criminal justice structure.  One, the Sentencing Commission Improvements Act, is relatively modest: consisting of just a few paragraphs, it provides for ‘‘a Federal Public or Community Defender designated by the Defender Services Advisory Group [to become an] ex officio, nonvoting member’’ of the U.S. Sentencing Commission.  The other bill is anything but modest: the Fair and Independent Experts in Clemency Act, or FIX Clemency Act, would create an ‘‘independent board to be known as the ‘U.S. Clemency Board,’’’ primarily tasked with reviewing and making recommendations to the president concerning clemency.  In addition to reprinting both of these bills and press releases from the members of Congress who introduced them, this Issue includes a series of original commentary discussing more broadly this particular moment in federal criminal justice reform.

Because they are full of substantive and rich insights, the original Articles in this Issue should be read in full and cannot be readily summarized here. However, having reviewed these Articles and the bills that partly inspired them, I am eager to introduce this Issue with a few musings about what I consider the important and unique symbolism that would necessarily accompany these proposed structural changes to the federal sentencing system.  Even with a change as modest as the Sentencing Commission Improvements Act, and especially with a change as notable as the FIX Clemency Act, Congress could send an important (and long overdue) message: that we need to alter the structures that have contributed to massive growth in the federal prison population.

Prison Policy Initiative publishes report on "Executive inaction: States and the federal government fail to use commutations as a release mechanism"

The main theme of this new Prison Policy Initiative report on clemency (and the lack thereof) is captured in this subtitle data point: "Our survey of eight states found an average of one commutation for every 10,000 imprisoned people each year."  Here are a few excerpts from a new data report that should be read in full:

If Biden intends to truly deliver on his promises to enact large-scale criminal justice reform, this set of commutations should merely mark the beginning of a broader initiative. In fact, nothing is holding him back: the President has the power to grant commutations to large categories of people in federal prisons independently — without any action by Congress, the Department of Justice, or another third party. Despite this broad power, most U.S. presidents in the era of mass incarceration have been hesitant to use their powers of commutation.

In 2021, at the request of advocates working on clemency reform in the northeast, we submitted records requests to eight northeastern states seeking information about their commutation processes. As our survey of these eight states finds, state executive branches also chronically underuse their commutation powers. The states in our sample reported granting just 210 commutations from 2005 through mid-2021, for a total average of 13 grants a year across the eight states. For comparison, the average total prison population across these eight states from 2005 to 2020 was about 130,000 — meaning that each year, this group of states commuted about one out of every 10,000 sentenced and imprisoned individuals. In fact, five of the states each reported granting just five commutations or fewer over the 16.5 years for which we requested data. And concerningly, almost no states in the sample increased their rate of commutations during the pandemic, at a time when reducing prison populations is critical to save lives....

Looking past the commutations granted by President Biden and at the operation of the federal clemency process more generally — it is clear that changes to the status quo are necessary. First, there is far too great a backlog in federal clemency applications. Data released on April 1, 2022 showed that approximately 18,270 applications for federal clemency are pending, nearly 15,000 of which are for a commutation of sentence. And, until April 2022, all of the 2,415 applications for clemency that had been acted on since the President took office in January 2021 had been administratively closed. This means that Biden had taken no action to either grant or deny clemency applications....

Historically, commutations were used much more frequently. In Massachusetts, for example, 218 commutations were granted in the 50s, 60s, and 70s, and 84% of them went to people serving life sentences for murder. Connecticut was still granting regular commutations even more recently: The state granted 36 commutations between 1991 and 1994.

But grants have since slowed down drastically and become exceedingly rare across the country. Massachusetts granted just 29 commutations in the 80s, 90s, 2000s, and 2010s; Connecticut reported granting five from 2016 to mid-2021. Today, commutations are often explicitly reserved for — or in practices, awarded only to — narrowly defined groups, such as people who have served at least half of their sentence or those convicted of “nonviolent” offenses.

"Modern Sentencing Mitigation"

The title of this post is the title of this notable new article authored by John B. Meixner Jr. now available in the Northwestern University Law Review. Here is its abstract:

Sentencing has become the most important part of a criminal case.  Over the past century, criminal trials have given way almost entirely to pleas.  Once a case is charged, it almost always ends up at sentencing.  And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions.  Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence.  It is surprising, then, that relatively little scholarship in criminal law focuses on mitigation at sentencing.  Fundamental questions have not been explored: Do the Sentencing Guidelines — which largely limit the relevance of mitigating evidence — make mitigation unimportant?  Does the extent or type of mitigation offered have any relationship with the sentence imposed?

This Article fills that gap by examining a previously unexplored data set: sentencing memoranda filed by defense attorneys in federal felony cases.  By systematically parsing categories of mitigating evidence and quantitatively coding the evidence, I show that mitigation is a central predictor of sentencing outcomes and that judges approach mitigation in a modern way: rather than adhering to the strict, offense-centric structure that has dominated sentencing since the advent of the Sentencing Guidelines in the 1980s, judges individualize sentences in ways that consider the personal characteristics of each defendant, beyond what the Guidelines anticipate.  And particular types of mitigation, such as science-based arguments about mental and physical health, appear especially persuasive.

The results have significant implications for criminal justice policy: while my data show that mitigation is critical to judges’ sentencing decisions, both the Guidelines and procedural rules minimize mitigation, failing to encourage both defense attorneys and prosecutors to investigate and consider it.  I suggest reforms to make sentencing more equitable, such as requiring the investigation and presentation of mitigation to constitute effective assistance of counsel, easing the barriers to obtaining relevant information on mental and physical health mitigation, and encouraging prosecutors to consider mitigation in charging decisions and sentencing recommendations.

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2021"

The US Sentencing Commission, despite the persistent lack of a quorum, continues churn out federal sentencing data and helpful reports about that data.  This week brings its regular annual review of federal criminal case data, released under the title "Overview of Federal Criminal Cases, Fiscal Year 2021."  The full 32 page report is available at this link, and the Commission describes and summarizes the report on this webpage in this way:

Summary

The United States Sentencing Commission received information on 57,377 federal criminal cases in which the offender was sentenced in fiscal year 2021.  Among these cases, 57,287 involved an individual offender and 90 involved a corporation or other “organizational” offender.  The Commission also received information on 4,680 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of these cases.

Highlights

A review of cases reported to the Commission in fiscal year 2021 reveal the following:

• The 57,287 individual original cases reported to the Commission in fiscal year 2021 represent a decrease of 7,278 (11.3%) cases from fiscal year 2020, and the lowest number of cases since fiscal year 1999.  The number of offenders sentenced in the federal courts reached a peak in fiscal year 20114 and the number of cases reported in fiscal year 2021 was 33.5 percent below that level.
  • Despite the decrease in overall caseload, sizeable increases were reported in drug trafficking, firearms, sex abuse, child pornography and money laundering cases.

• Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 83.1% of all cases reported to the Commission.
• Drug offenses overtook immigration offenses as the most common federal crime in fiscal year 2021, accounting for 31.3% of the total caseload.
  • Drug possession cases continued a five-year downward trend, decreasing 29.6 percent from fiscal year 2020, while the number of drug trafficking cases rose 7.4 percent after reaching a five-year low in 2020.
  • Two-thirds (67.7%) of drug trafficking offenders were convicted of an offense carrying a mandatory minimum penalty.
  • Methamphetamine remained the most prevalent drug type. The 8,494 methamphetamine cases accounted for 48.0 percent of all drug crimes. The proportion of methamphetamine cases has increased steadily since fiscal year 2017, when those cases accounted for 36.6 percent of all drug cases.
  • The number of fentanyl cases increased 45.2 percent from the year before and now constitute the fourth most numerous drug type. In contrast, the proportion of the drug caseload involving heroin and marijuana has steadily decreased over the last five years.

"Bad Faith Prosecution"

The title of this post is the title of this new paper on SSRN authored by Ann Woolhandler, Jonathan Remy Nash and Michael G. Collins. Here is its abstract:

In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common than ever.  The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution.  The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution.  Many have condemned the standards used by the Court as unduly limiting bad faith prosecution claims, and as inconsistent with ordinary standards for proving cases of unconstitutional motivation.  In this article we address these criticisms and suggest that current standards may provide an appropriate middle ground between the perils of standards that are too lax or too stringent for bad faith prosecution claims.  We also address other arguable inconsistencies between the standards for bad faith prosecutions claims and those for related areas, and offer resolutions. Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier.

Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations

Because I always am inclined to say better late than never, I was quite pleased to wake up to the news that President Joe Biden is finally starting to make good on his  campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."  This USA Today piece, headlined "Biden to pardon three felons, commute sentences of 75 others, in first grants of clemency," provides these details:

The nation's first Black Secret Service agent on a presidential detail, now 86 years old living in Chicago, who has worked decades to clear his name for a crime he has said he didn't commit. A 51-year-old woman from Houston who served seven years in prison for attempting to transport drugs for her boyfriend and accomplice – neither of whom faced charges. And a 52-year-old man from Athens, Georgia, who partners with schools to employ youth at his cellphone repair company, two decades after he was charged for letting pot dealers use his pool hall to sell drugs.

Three convicted felons – Abraham Bolden Sr., Betty Jo Bogans and Dexter Eugene Jackson – are receiving presidential pardons from President Joe Biden, along with 75 others whose sentences the president is commuting Tuesday, in the first use of clemency power of the Biden presidency.  All of Biden's commutations target individuals serving sentences for low-level drug offenses, some of whom have served on home confinement during the COVID-19 pandemic.  Many are Black or brown, and the White House said each has displayed efforts to rehabilitate themselves.

The clemency announcements, which coincide with national "Second Chance Month," come as Biden will also announce new actions aimed at improving outcomes for felons who reenter society. That includes $145 million for a federal program to train the incarcerated for future employment and the removal of criminal history in applications for Small Business Administration grants.

"America is a nation of laws and second chances, redemption, and rehabilitation," Biden said in a statement. "Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities. During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans."...

The individuals granted clemency came at the recommendation of the Department of Justice's pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides. Biden said the three people pardoned have each "demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities."...

Nearly one-third of the 75 commutation recipients would have received lower sentences if they had been charged today under the Trump-era criminal justice law, the First Step Act, according to senior Biden administration officials. They have served an average of 10 years in prison and have "shown resilience" in seeking a productive path forward, a White House official said.

The official statement from Prez Biden on these grants is available at this link, and its start provides links to all those granted clemency and other executive action on the reentry front:

America is a nation of laws and second chances, redemption, and rehabilitation. Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities.  During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans.

Today, I am pardoning three people who have demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities.  I am also commuting the sentences of 75 people who are serving long sentences for non-violent drug offenses, many of whom have been serving on home confinement during the COVID-pandemic — and many of whom would have received a lower sentence if they were charged with the same offense today, thanks to the bipartisan First Step Act.  

My Administration is also announcing new steps today to support those re-entering society after incarceration.  These actions include: a new collaboration between the U.S. Department of Justice and the U.S. Department of Labor to provide job training; new grants for workforce development programs; greater opportunities to serve in federal government; expanded access to capital for people with convictions trying to start a small business; improved reentry services for veterans; and more support for health care, housing, and educational opportunities. 

Though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms terms for drug offenses.  From a quick scan, it looks like perhaps more than a third of those who received commutations are women, which reminded me of the statements of Prez Trump clemency recipient Alice Marie Johnson that there were thousands of persons like her in prison who deserved commutation.  (BOP data show the federal prison population is comprised of less than 7% women, though I sense that much more than 7% of the most mitigated cases involve women.)

A few of many prior recent related posts:

• "When Will Joe Biden Start Using His Clemency Powers?"
• A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants
• New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"
• Justice Department has new Pardon Attorney who is a former public defender ... which means ...? 

Texas Court of Criminal Appeals stops execution and remands Melissa Lucio's case for review of her conviction

Because her case had received considerable attention and because she seemed to have a colorable claim of actual innocence, I was expecting that Melissa Lucio's scheduled execution would not go forward this week.  But I was unsure who would stop it and how.  Today we found out, as detailed in this local article headlined "Melissa Lucio’s execution halted by Texas Court of Criminal Appeals."  Here are the details:

The Texas Court of Criminal Appeals on Monday halted the scheduled Wednesday execution of Melissa Lucio, whose death sentence has drawn international outcry as more people come to doubt her guilt in her 2-year-old daughter’s death.

The court sent Lucio's case back to the Cameron County court where she was originally tried to weigh whether she is actually innocent, as well as whether the state presented false testimony at trial and hid evidence from the defense.  The court's ruling came minutes before the Texas Board of Pardons and Paroles was scheduled to vote on whether to recommend that the governor delay Lucio's execution for at least 120 days.  The board later said that it would no longer make a recommendation because of the court's ruling....

In a statement provided by her attorneys, Lucio said she was thankful for those who spoke out for her and was "grateful the Court has given me the chance to live and prove my innocence. Mariah is in my heart today and always.  I am grateful to have more days to be a mother to my children and a grandmother to my grandchildren."

Questions over Mariah Alvarez’s death and Lucio’s role in it have lingered since the now-53-year-old mother was sentenced to death in 2008.  In recent months, concerns about Lucio’s possible innocence — greatest among them whether Mariah’s fatal head trauma was caused by abuse or an accidental fall down the stairs — have only been amplified.

More than two-thirds of the Texas Senate and a majority of the Texas House of Representatives pleaded for the parole board and governor to halt Lucio’s execution. The lawmakers have been joined by an ever-growing list of people, including at least five of Lucio’s former jurors....

The admissions to child abuse, which Lucio has since recanted, were the main evidence presented at trial, where jurors found she was guilty of capital murder and worthy of a death sentence.  Lucio’s advocates have since condemned the trial judge for not letting the jury hear critical testimony from mental health professionals that could have explained why Lucio, a longtime victim of sexual abuse and domestic violence, would falsely confess.

Texas' highest criminal court sent Lucio's case back to her trial court to weigh multiple questions.  Lucio's latest appeal argued false evidence from the state — largely that jurors heard a Texas Ranger testify he could tell by Lucio's demeanor in her interrogation that she was guilty, and the medical examiner's definitive conclusions that Mariah's injuries were from child abuse — swayed the jury to wrongly convict Lucio.  Her attorneys also argue new scientific evidence has debunked claims made at trial that definitively established the marks on Mariah's back were from a bite.  They said science also now shows Lucio would be very likely to falsely confess.

Finally, the appeal argued the prosecution hid potentially helpful evidence, including interviews of Lucio's older children after Mariah's death that corroborated Lucio's statement that Mariah fell down the stairs. "It would have shocked the public’s conscience for Melissa to be put to death based on false and incomplete medical evidence for a crime that never even happened," Vanessa Potkin, Lucio's lawyer with The Innocence Project, said in a statement after Monday's ruling.

Despite the wide-ranging concerns with Lucio’s police interrogation and trial, appellate courts have previously upheld her conviction and sentence, even though a majority of judges on a conservative court found the case troublesome. 

Prior related posts:

• Might Texas be on the verge of executing an innocent woman? 
• Highlighting just some of the notable US executions scheduled for the next few weeks

"Did Mass Incarceration Leave Americans Feeling Less Afraid? A Multilevel Analysis of Cumulative Imprisonment and Individual Perceptions of Fear"

The title of this post is the title of this new research article now available online which is to be published in the journal Justice Quarterly and is authored by Andrea Corradi and Eric Baumer.  Here is its abstract:

Much of the political rhetoric that facilitated mass incarceration was predicated on the promise of reducing fear among the public.  Yet, it remains unclear whether the large increases in imprisonment experienced in many areas made residents feel less afraid.  We examine this issue by integrating geographic data on imprisonment with individual-level data on fear from the General Social Survey (GSS).  We find that people from states and counties with greater “cumulative imprisonment” rates were no less afraid than their counterparts from areas that imprisoned many fewer people.  These findings hold for the public overall and for non-Latino whites and members of the working and middle classes, who frequently were target audiences for political rhetoric linking mass incarceration era policies to fear reduction.  Our study supports growing calls to decouple crime and criminal justice policy from politics and electoral cycles, and to develop evidence-based punishment approaches organized around transparent normative principles.

Arizona court rejects condemn man's petition objecting to too many law enforcement members on state Board of Clemency

This new NPR piece, headlined "In rejecting death row inmate's case, judge says law enforcement isn't a profession," reports on this interesting state court ruling from last week concerning the Arizona clemency process. Here are the details and context:

An Arizona inmate who is mere weeks away from his scheduled execution argued the state's clemency board was unfairly loaded with law enforcement. But a state judge has disagreed, saying that law enforcement does not meet the definition of a "profession."

Earlier this month, the Arizona Supreme Court issued an execution warrant – the first in eight years – for Clarence Wayne Dixon, a 66-year-old prisoner convicted of first-degree murder. But Dixon's attorneys argued Tuesday that the Arizona Board of Clemency, which is set to meet on April 28 to decide whether to stay the execution, is illegally made up of too many members who had careers in law enforcement.

This past Tuesday, Maricopa County Superior Court Judge Stephen Hopkins ruled against Dixon. "Historically, law enforcement has not been thought of as a "profession," Hopkins said in his decision. "It is not regulated as other professions are, and has little of the characteristics of what is typically considered a profession."...

Arizona law prohibits "No more than two members from the same professional discipline" from serving on the clemency board at the same time. The current board is made up of: one former superior court commissioner and assistant attorney general; a former federal agent with over 30 years' experience; a retired officer who spent 30 years with the Phoenix Police Department; and a 20-plus-year detective, also with the Phoenix PD. The fifth seat on the board is currently vacant.

Dixon was serving seven life sentences for the 1985 kidnapping, rape and assault of a Northern Arizona University student, according to court documents, when investigators connected him with a murder that took place seven years earlier. In 2001, DNA evidence linked Dixon to the January 1978 murder of Deana Bowdoin, a 21-year-old student at Arizona State University. She was found dead in her apartment, having been strangled and stabbed. A jury sentenced Dixon to death in 2008....

Dixon's execution, which appears all but certain at this time, will be the first to be carried out in Arizona since the botched execution of Joseph Rudolph Wood in 2014. Wood's execution should have taken a matter of minutes, NPR previously reported, but instead, the prisoner took more than two hours to die.

Based on the ruling, it seems that Dixon also asserted a due process violation, perhaps based only on the statutory requirement or maybe independently.  The court address that issue this way: "To be sure, courts have recognized due process rights in connections with boards of parole, pardon, or clemency.  See generally Chapter Three, The Law of Probation and Parole.  However, to the Court’s knowledge no case anywhere has recognized a due process right in the particular makeup of such a board."

Supreme Court grants cert on procedural issue relating to federal suits seeking DNA testing of crime-scene evidence

For the first time in what seems like a while, the US Supreme Court granted certiorari in a couple of new cases this morning.  The two cert grants in this order list has one civil matter and on criminal matter. The criminal case is Reed v. Goertz, No. 21-442, and here is its question presented via SCOTUSblog:

Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

Though executions are declining, questions about methods and how to litigate them persist

From 1995 to 2005, there were nearly 750 executions in the United States (747 to be exact, an average of 68 per year), almost all of which were by lethal injection, and relatively few of which were significantly delayed by uncertainty or litigation over execution methods.  But by the mid 2000s, litigation challenging the constitutionality of lethal injection began to pick up steam and the Supreme Court began to take up a number of different matters relating to this litigation.  (I blogged, somewhat cheekily, about all the lethal injection "scrummages" during this period.)

Fast forward another 16 years, and there have been "only" another 540 executions in the US from 2006 until today (an average of 34 per year), and there have been fewer executions in the last five years than in a number of single years in the 1995-2005 period.  The considerable amount of litigation over lethal injection is surely part of the reason for the modern decline, even with the Supreme Court repeatedly upholding lethal injection as a method of execution in landmark cases like Baze v. Kentucky (2008) and Glossip v. Gross (2015).

I provide all this background as a mini preview and prelude to the execution method litigation that SCOTUS will be hearing oral argument on Monday.  Nance v. Ward is about what procedural means condemned prisoners must use to challenge execution methods, and I suspect the history just recounted could impacting how various Justices approach this case.  Still, as discussed in the  SCOTUSblog preview post here authored by Lee Kovarsky, complicated procedural precedents may make this matter hard to predict.  That post concludes this way:

Nance is ultimately a case about how aggressively the Supreme Court wants to suppress method-of-execution claims, which it generally views as legalistic ploys to delay imposition of valid death sentences.  If it adopts Georgia’s preferred rule, then it will meaningfully alter the form and timing of Eighth Amendment challenges, and it will substantially reduce judicial enforcement against the states.  The court’s general disposition towards method-of-execution claims notwithstanding, the court agreed to review a lower court decision against a prisoner — which raises the very real prospect that Nance might be a case in which the court is actually prepared to rule in the prisoner’s favor.

"The consequences of Medicaid expansion under the Affordable Care Act for police arrests"

The title of this post is the title of this notable empirical paper that was published earlier this year but came to my attention this weekend.  Here is its abstract:

Background & methods

National protests in the summer of 2020 drew attention to the significant presence of police in marginalized communities.  Recent social movements have called for substantial police reforms, including “defunding the police,” a phrase originating from a larger, historical abolition movement advocating that public investments be redirected away from the criminal justice system and into social services and health care.  Although research has demonstrated the expansive role of police to respond a broad range of social problems and health emergencies, existing research has yet to fully explore the capacity for health insurance policy to influence rates of arrest in the population.  To fill this gap, we examine the potential effect of Medicaid expansion under the Affordable Care Act (ACA) on arrests in 3,035 U.S. counties.  We compare county-level arrests using FBI Uniform Crime Reporting (UCR) Program Data before and after Medicaid expansion in 2014–2016, relative to counties in non-expansion states. We use difference-in-differences (DID) models to estimate the change in arrests following Medicaid expansion for overall arrests, and violent, drug, and low-level arrests.

Results

Police arrests significantly declined following the expansion of Medicaid under the ACA. Medicaid expansion produced a 20–32% negative difference in overall arrests rates in the first three years.  We observe the largest negative differences for drug arrests: we find a 25–41% negative difference in drug arrests in the three years following Medicaid expansion, compared to non-expansion counties.  We observe a 19–29% negative difference in arrests for violence in the three years after Medicaid expansion, and a decrease in low-level arrests between 24–28% in expansion counties compared to non-expansion counties. Our main results for drug arrests are robust to multiple sensitivity analyses, including a state-level model.

Conclusions

Evidence in this paper suggests that expanded Medicaid insurance reduced police arrests, particularly drug-related arrests.  Combined with research showing the harmful health consequences of chronic policing in disadvantaged communities, greater insurance coverage creates new avenues for individuals to seek care, receive treatment, and avoid criminalization.  As police reform is high on the agenda at the local, state, and federal level, our paper supports the perspective that broad health policy reforms can meaningfully reduce contact with the criminal justice system under historic conditions of mass criminalization.

US Sentencing Commission releases FY 2022 first quarter sentencing data (with notably low percentage of within-range sentences)

This weekend I noticed that the US Sentencing Commission just published here its latest quarterly data report which sets forth "1st Quarter 2022 Preliminary Cumulative Data (October 1, 2021, through December 31, 2021)."  These new data provide another official accounting of how the COVID pandemic has impacted federal sentencing.  Specifically, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 has seen a rebounding of total cases sentenced, but this latest quarter had just over 15,000 total federal cases sentenced.  Figure 2 also shows that a steep decline in immigration cases continues to primarily accounts for the decrease in overall cases sentenced.

As I have noted before, the other big COVID era trend is a historically large number of below-guideline variances being granted, and this trend has now extended over the last six quarters (as detailed in Figures 3 and 4).  Though one possible explanation for this trend is that more federal judges are imposing lower sentences because of COVID-related concerns, other data suggest that other factors may be in play.  Specifically, Figure 5 shows that the average guideline minimum and average sentences for all cases has been historically high during the COVID era, which is likely a product of the altered case mix with fewer immigration case and perhaps also because federal prosecutors during COVID are more likely to be moving forward with the most aggravated of cases.  With the "Average Guideline Minimum" and also the "Average Sentence" higher in all COVID-era quarters, we may be seeing a higher percentage of below-guideline sentences largely because the guideline benchmarks are particularly high. 

Whatever the full explanation, in this most recent quarter the data show that only 41.6% of all federal sentences are imposed "Within Guideline Range."  I think this number around the lowest it may have ever been.  And yet, this still mean that more than two out of every five cases are imposed within the guidelines while all the others are still sentenced in the shadow of the guidelines.  (Figure 5 shows how closely the sentences actually imposed and guideline ranges track each other.)  So, even with a notably low percentage of within-range sentences, the guidelines still matter a lot (and many of them remain badly broken).  We should all hope that there will be appointments to the US Sentencing Commission soon so that the government agency tasked by Congress with establishing and improving "sentencing policies and practices for the Federal criminal justice system" can finally get back into full swing.