Sentencing Law and Policy

"Prisons and jails will separate millions of mothers from their children in 2022"

The title of this post is the title of this briefing by Prison Policy Initiative authored by Wendy Sawyer and Wanda Bertram and published in time for Mother's Day.  Here is how it gets started:

This Mother’s Day — as the COVID-19 pandemic continues to put people behind bars at risk — nearly 150,000 incarcerated mothers will spend the day apart from their children.  Over half (58%) of all women in U.S. prisons are mothers, as are 80% of women in jails, including many who are incarcerated awaiting trial simply because they can’t afford bail.

Most of these women are incarcerated for drug and property offenses, often stemming from poverty and/or substance use disorders.  Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support.  And these numbers don’t cover the many women preparing to become mothers while locked up this year: An estimated 58,000 people every year are pregnant when they enter local jails or prisons.

150,000 mothers separated from their children this Mother’s Day is atrocious in and of itself — but that’s just one day.  How many people in the U.S. have experienced separation from their mothers due to incarceration over the years?  Unfortunately, these specific data are not collected, but we calculated some rough estimates based on other research to attempt to answer this question:

• Roughly 570,000 women living in the U.S. had ever been separated from their minor children by a period of imprisonment as of 2010.
• An estimated 1.3 million people living in the U.S. had been separated from their mothers before their 18th birthdays due to their mothers’ imprisonment, also as of 2010.

Register for "State Sentencing Commissions Work Towards Decarceration"

In this prior post, 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 running now every Tuesdays at 12noon ET, which means the second panel is scheduled taking place this coming Tuesday, May 10th.  This panel is titled "State Sentencing Commissions Work Towards Decarceration," and the speakers are all the leaders of state sentencing commissions who will be discussing their work towards decarceration and lessons for the US Sentencing Commission.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this panel:

Kelly Mitchell, Chair of the MN Sentencing Guidelines Commission

Mark Bergstrom, Executive Director of the PA Commission on Sentencing

Sara Andrews, Executive Director of the OH Sentencing Commission

 

Here is a run-down of future panels:

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 posts:

• Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"
• Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court" 

Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized

As mentioned in this post right after the leaked draft SCOTUS opinion suggested Roe v. Wade will soon be overturned, if abortion issues are returned entirely to elected officials, a lot more abortion-related activity will be criminalized in a lot more states raising all sorts of new issues regarding sentencing law and policy.  I flagged a few of the sentencing provisions of some of the recently-enacted criminal prohibitions of abortions in a few states in my prior post, and now Politico is on this beat with this new piece fully headlined, "Abortion bans and penalties would vary widely by state: The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license."  Here are excerpts:

Abortion bans set to take effect if Roe v. Wade is overturned could mean lengthy prison sentences for people who have an abortion, the physicians who perform them or those who help people access the procedure. The penalties vary widely by state, and also can include hefty fines or the suspension of a medical license.

Even as national Republican leaders, many of whom have worked for decades to outlaw abortion, dismiss fears of prosecutions, state lawmakers have already enacted mandatory minimum sentences that would go into effect if Justice Samuel Alito’s draft opinion is handed down....

[I]n Texas, anyone who performs, induces or attempts an abortion where “an unborn child dies as a result of the offense” is guilty of a first-degree felony — punishable by up to life in prison and up to a $10,000 fine — under the state’s trigger ban.  In Alabama, anyone who performs an abortion, provides abortion pills or “aids, abets or prescribes for the same,” faces up to 12 months in county jail or hard labor and a fine of up to $1,000 under the state’s pre-Roe ban.  And in South Carolina, a person who ends their pregnancy either with a pill or by other means faces up to two years in prison and a fine of up to $1,000 under state law.

Bills moving in some states go even further. Legislation in Louisiana that would classify abortions as homicide and extend legal personhood to fertilized eggs was voted out of committee on Wednesday.  Homicide is punishable in the state by the death penalty or life without the possibility of parole....

And while some states — such as Idaho, Missouri and Kentucky — have legal language saying people who get an abortion can’t be charged, those patients could be forced to testify against their doctor or romantic partner who helped them access the procedure.  “Even if a bill doesn’t allow pregnant people to be charged directly, we’re concerned about the ways increased surveillance could lead to people being criminalized for an abortion or another kind of pregnancy loss,” Farah Diaz-Tello, the senior counsel and legal director of the group If/When/How, told POLITICO.

Notably, this new New York Times article discusses the growing use of "medication abortion" under the headlined "Abortion Pills Stand to Become the Next Battleground in a Post-Roe America." Here is how the lengthy article concludes:

Some abortion rights advocates said that the availability of safe and effective abortion pills has eliminated one of the greatest fears in the years before Roe — but has added a new one.  “One of the sharpest distinctions is really between the idea of hemorrhaging and the idea of handcuffs,” said Kristin Ford, a spokeswoman for NARAL Pro-Choice America.  “In the pre-Roe world, there was a legitimate concern about people bleeding out in back alleys. That’s not the reality we face. What we’re looking at now is a world of criminalization.”

The development of abortion drugs and the eagerness of some to distribute them and of others to prohibit them already has me wondering if we could be on the verge of a whole new frontier for the war on drugs. Remarkable times.

Recent related post:

• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 

Important new report explores "The Limits of Recidivism: Measuring Success After Prison"

The quoted portion of this post is the title of this important new report released by the National Academies of Sciences, Engineering and Medicine.  Here is an account of this report from the NAS website:

Nearly 600,000 people are released from state and federal prisons annually. Whether these individuals will successfully reintegrate into their communities has been identified as a critical measure of the effectiveness of the criminal legal system.  However, evaluating the successful reentry of individuals released from prison is a challenging process, particularly given limitations of currently available data and the complex set of factors that shape reentry experiences.

The Limits of Recidivism: Measuring Success After Prison finds that the current measures of success for individuals released from prison are inadequate.  The use of recidivism rates to evaluate post-release success ignores significant research on how and why individuals cease to commit crimes, as well as the important role of structural factors in shaping post-release outcomes.  The emphasis on recidivism as the primary metric to evaluate post-release success also ignores progress in other domains essential to the success of individuals returning to communities, including education, health, family, and employment.

In addition, the report highlights the unique and essential insights held by those who have experienced incarceration and proposes that the development and implementation of new measures of post-release success would significantly benefit from active engagement with individuals with this lived experience.  Despite significant challenges, the report outlines numerous opportunities to improve the measurement of success among individuals released from prison and the report’s recommendations, if implemented, will contribute to policies that increase the health, safety, and security of formerly incarcerated persons and the communities to which they return.

The full report runs a full 200 pages, and this three-page pdf provides highlights.  And this press release also provides this additional overview and more summary details, and here is an excerpt:

Recidivism is an inadequate measurement of success after release from prison, says a new report from the National Academies of Sciences, Engineering, and Medicine. The report recommends researchers develop supplementary measures that evaluate success across multiple areas of a person’s life after prison — including employment, housing, health, social support, and personal well-being — and that measure interactions with the criminal justice system with more nuance. Federal efforts should be directed to developing national standards for recidivism data and new measurements....

“Our report draws on the expertise of individuals who have experienced reentry, those who work in corrections and reentry services, as well as victims’ advocates and many other communities — and it’s clear that it’s time we recognize the numerous shortcomings of relying exclusively on recidivism data,” said Richard Rosenfeld, Curators’ Distinguished Professor Emeritus of Criminology and Criminal Justice at the University of Missouri-St. Louis, and chair of the committee that wrote the report. “Better measures could open many doors for better decision-making and policy.”...

Recidivism is also limited in that it is a binary measure, says the report. Decades of research have shown that ceasing criminal activity is a process and may involve setbacks. Recidivism rates fail to capture indicators of progress toward the cessation of criminal activity, such as reductions in the seriousness of criminal activity or increases in time between release and a criminal event. Researchers should supplement recidivism rates with these measures of moving away from crime, the report says.

The report recommends the development of new measures of post-release success that take into account a number of factors in people’s lives after incarceration, including personal well-being, education, employment, housing, family and social supports, health, civic and community engagement, and legal involvement.  In particular, significant efforts — including by federal agencies — should be directed to developing national standards for measuring post-release success.  Creating national standards could make data easier to compare across programs and jurisdictions. Creating a website that contains core measures and data collection instruments could hasten development of these standards, the report says.

Federal agencies, including the National Institute of Justice, Bureau of Justice Statistics, Bureau of Justice Assistance, and National Institutes of Health, should convene research panels to assess new measures of post-release success.  These agencies should also solicit grant proposals from researchers and practitioners who work collaboratively with formerly incarcerated people to review new measures.

Researchers should also develop new ways to measure barriers to and facilitators of post-release success, which could help improve understanding of how to best serve those released from prison. Individuals released from prison face a number of significant barriers, such as returning to communities without adequate employment opportunities, or lacking access to mental health counseling, among others — and better measures could enhance our understanding of which community and policy factors make post-release success more or less likely.

Federal judge formally accepts below-guideline sentencing terms of Derek Chauvin's plea deal for civil rights violations

As reported in this post from back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  At the time, the judge deferred acceptance of the plea deal pending preparation of the presentence report.  That report is now in, as this AP piece reports that the plea deal was formally accepted by the court yesterday: 

The judge overseeing the federal civil rights cases of four former Minneapolis police officers in the killing of George Floyd said Wednesday that he has accepted the terms of Derek Chauvin's plea agreement and will sentence him to 20 to 25 years in prison.

Chauvin pleaded guilty December 15 to violating Floyd's civil rights, admitting for the first time that he kept his knee on Floyd's neck — even after he became unresponsive — resulting in the Black man's death on May 25, 2020. The White former officer admitted he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.

Under the plea agreement, which Chauvin signed, both sides agreed Chauvin should face a sentence ranging from 20 to 25 years, with prosecutors saying they would seek 25. He could have faced life in prison on the federal count. With credit for good time in the federal system, he would serve from 17 years to 21 years and three months behind bars.

U.S. District Judge Paul Magnuson deferred accepting the agreement pending the completion of a presentence investigation. He said in a one-page order Wednesday that the report had been issued, so it was now appropriate to accept the deal. He has not set a sentencing date for Chauvin.

Chauvin is already serving a 22 1/2 year sentence for his murder conviction in state court last year, though he is appealing that conviction. He would serve the federal sentence concurrently with the state sentence. The federal plea deal means Chauvin will probably spend more time in prison than he faced under his state sentence. State prisoners in Minnesota typically serve one-third of their sentence on parole, which for him would mean 15 years in prison.

I am inclined to predict that Judge Magnuson will give Chauvin the max that this plea deal permits of 25 years, which would likely mean Chauvin will be in the federal pen until the early 2040s. Based on the state murder conviction alone, he would have likely been out by the mid 2030s.

A few prior related posts:

• Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors 
• State judge finds four aggravating factors could support upward departure at Derek Chauvin's upcoming sentencing 
• In latest sentencing filings, Derek Chauvin requests probation while prosecutors ask for him to get 30 years in prison 
• Derek Chauvin gets 22.5 years for killing George Floyd 
• Federal plea deal on civil rights charges reportedly in the works for Derek Chauvin
• Though guidelines recommend federal LWOP sentence for Derek Chauvin, plea deal provides for concurrent sentence between 20 and 25 years 

Notable CCJ new task force examining long prison terms

I was pleased to see this announcement of the Council of Criminal Justice's new Task Force on Long Sentences. The membership roster is very impressive, and here is how the task force is described on the CCJ site:

The Council on Criminal Justice Task Force on Long Sentences is examining how long prison terms affect public safety, crime victims and survivors, incarcerated individuals and their families, communities, and correctional staff and developing recommendations that will strengthen public safety and advance justice.

Guided by research and data, and informed by the experiences of victims and survivors of violent crimes and those who have been incarcerated, the Task Force is assessing the drivers of growth in the number of people sentenced to 10 years or more and the impact of such sentences on racial, ethnic, and gender disparities in the prison system.  It also is considering ways to improve the post-release success of people serving long prison terms, most of whom return to the community.

The Task Force is co-chaired by former U.S. Deputy Attorney General Sally Yates, who was also U.S. Attorney for the Northern District of Georgia, and Trey Gowdy, a long-time federal and state prosecutor who served four terms in the House of Representatives.  Joining them are 14 other members representing a broad range of experience and perspectives, including crime victims and survivors, formerly incarcerated people, prosecutors, defense attorneys, law enforcement, courts, and corrections.

Launched in spring 2022, the Task Force on Long Sentences follows CCJ’s Violent Crime Working Group, which released a series of bulletins on strategies to address community violence and in January produced a roadmap of 10 essential actions that policymakers can take to reduce violence now. 

"Damned if you do, damned if you don't: How formerly incarcerated men navigate the labor market with prison credentials"

The title of this post is the title of this recent article published in Criminology authored by Sadé L. Lindsay.  Here is its abstract:

Although employment is central to successful reentry, formerly incarcerated people struggle to find work because of criminal stigma, poor education, and sparse work histories. Prison credentials are proposed as one solution to alleviate these challenges by signaling criminal desistance and employability.  Evidence regarding their efficacy, however, is inconsistent.  In this article, I develop a novel explanation — the prison credential dilemma — highlighting the numerous and contradictory ways employers may interpret prison credentials as positive and negative signals.

Drawing on 50 qualitative interviews with formerly incarcerated men in Franklin County, Ohio, I examine how the prison credential dilemma and the uncertainty it produces shape their job search strategies and pathways to employment.  I find that participants concealed or obscured institutional affiliations of prison credentials on job applications to signal employability rather than their criminal records.  In job interviews, however, prison credentials were used to divert conversations away from their criminal record toward skills and criminal desistance via the use of redemptive narratives.  Participants also attempted to acquire credentials outside of prison and/or pursued temporary, precarious jobs, aspiring for such physically strenuous and poorly paid work to materialize into stable employment.  This study has implications for prison programming as well as policies and practices aiming to improve reentry outcomes.

Missouri completes execution of murderer who had death sentences reversed three times

As reported in this AP piece, a "Missouri man who killed a couple during a robbery at their rural home more than a quarter of a century ago was put to death Tuesday, becoming just the fifth person executed in the United States this year."  Here is more:

Carman Deck, 56, died by injection at the state prison in Bonne Terre.  He was pronounced dead at 6:10 p.m.  His fate was sealed a day earlier when neither the U.S. Supreme Court nor Republican Gov. Mike Parson stepped in to halt the execution.  Deck’s death sentence was overturned three times before for procedural issues.

Just four other people have been executed in the U.S. in 2022— Donald Anthony Grant and Gilbert Ray Postelle in Oklahoma, Matthew Reeves in Alabama and Carl Wayne Buntion last month in Texas.  Eleven people were executed in the U.S. last year, the fewest since 1988.

Court records show that Deck, of the St. Louis area, was a friend of the grandson of James and Zelma Long in De Soto, about 45 miles southwest of St. Louis. He knew the couple, in their late 60s, kept a safe in their home....  Deck ordered the couple to lie on their stomachs on their bed.  Court records said Deck stood there for 10 minutes deciding what to do, then shot James Long twice in the head before doing the same thing to Zelma Long....

Prosecutors said Deck later gave a full account of the killings in oral, written and audiotaped statements.  He was sentenced to death in 1998, but the Missouri Supreme Court tossed the sentence due to errors by Deck’s trial lawyer.  The U.S. Supreme Court threw out his second sentence in 2005, citing the prejudice caused by Deck being shackled in front of the sentencing jury.

He was sentenced to death for a third time in 2008.  Nine years later, U.S. District Judge Catherine Perry determined that “substantial” evidence arguing against the death penalty in Deck’s first two penalty phases was unavailable for the third because witnesses had died, couldn’t be found or declined to cooperate.  In October 2020, a three-judge panel of the 8th U.S. Circuit Court of Appeals restored the death penalty, ruling that Deck should have raised his concern first in state court, not federal court.  Appeals of that ruling were unsuccessful.

Without Roe, what does sentencing law and policy look like surrounding criminalized abortions?

Reproductive rights are not my area of specialty.  But my interest in constitutional jurisprudence and the work of the US Supreme Court has me paying close attention to the remarkable news that broke last night regarding a leaked draft Court opinion (per Justice Samuel Alito) stating that "Roe and Casey must be overruled" so as to "return the issue of abortion to the people’s elected representatives."  And, as the title of this post is meant to suggest, if Roe is overruled, returning the issue of abortion to elected officials means that a lot more abortion-related activity will be criminalized in a lot more states.  And, of course, new arenas of criminalization necessarily mean new issues regarding sentencing law and policy.

At the risk of getting too much of a head start on these issues, I took a look at some of the sentencing provisions of what seem to be among the broadest, recently enacted criminal prohibitions of abortions.  For example, Oklahoma last month enacted this abortion criminalization bill, and here are its sentencing elements:

A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed One Hundred Thousand Dollars ($100,000.00), or by confinement in the custody of the Department of Corrections for a term not to exceed ten (10) years, or by such fine and imprisonment.

This section does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.

Meanwhile, Texas last year passed its "trigger law" to outlaw abortion 30 days after a court ruling allowing such a ban, and here are its key sentencing provisions:

This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted....

An offense under this section is a felony of the second degree [which carries a sentencing range from 2 to 20 years in prison], except that the offense is a felony of the first degree if an unborn child dies as a result of the offense [which carries a sentencing range of 5 to 99 years or life in prison].

Arkansas enacted its Unborn Child Protection Act last year, and its sentencing provisions are very similar to Oklahoma's:

Performing or attempting to perform an abortion is an unclassified felony with a fine not to exceed one hundred thousand dollars ($100,000) or imprisonment not to exceed ten (10) years, or both.

This section does not authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child.

My goal here is not, with Roe still formally the law of the land, to unpack fully all the criminal law and sentencing policy questions that are sure to follow in the wake of Roe's reversal and existing state interest in criminalizing abortions.  Rather, in the wake of last night's leak, I just wanted to flag that it no longer seems too early to start exploring earnestly just what state sentencing law and policy may soon look like surrounding this potential new frontier of criminalized abortions.

"Why Tennessee Gov. Bill Lee should veto mass-incarceration crime bill"

The title of this post is the headline of this commentary authored by David Louis Raybin. I recommend the full piece, and here are excerpts:

Crime rates do not drive a state’s prison population — policy choices do.

Every year the General Assembly passes a few bills which lengthen sentences for a few crimes.  This year the flood gates opened.  Two dozen offenses have been amended to require service of 85% or even 100% of the total time before release. There are no “behavior” credits which reduce these sentences further. Some offenses now prohibit parole.

Our current sentencing scheme includes lengthy sentences that can be a mix of prison and supervised parole release on a case-by-case basis.  For example, a first offender might get a sentence of six years, but he or she would be eligible for parole supervision after service of about 30% of that time.  Now, he or she will serve the full 6 years.

There are better ways to accomplish certainly in sentencing such as by having mandatory minimums of real time behind bars but coupled with rehabilitative programs.  The sentence lengths under current law were never designed for 100% or even 85% sentences.  But now the real time in prison is doubled or even tripled with no hope and release perhaps decades later with little or no supervision.

In 1979, crime was getting out of hand. Gov. Lamar Alexander’s legal counsel and I were asked to draft a crime bill....  We came up with what was known as the Class X Felony Law of 1979.  Much like the current legislation, this law eliminated early parole and sentencing credits.

While it seemed like a good idea at the time, in a few years the prisons were filled and eventually overflowing.  There were riots in four prisons.  Correctional officers and nurses were held hostage.  A fire started at one prison caused millions in damage.  A federal court took over our prisons.  The General Assembly was called into an emergency special session.  As a result, parole and credits were restored as a reward for good behavior and to allow for supervised release of compliant inmates. We should learn the lessons of the not-too-distant past and not repeat the same mistakes.

The cost to taxpayers of this current legislation is astronomical: $95 million.  Thousands of people are convicted each year of the offenses that will now require substantially increased prison sentences.  Our prisons are already bursting at the seams with inmates backing up in the jails.  We would need to build new prisons each year to house the increase in inmates....  As part of the budget the legislature also approved funding for a covered football stadium.  We may need it to house all the extra prisoners this crime bill will generate.

With his veto pen, Governor Lee has an opportunity to give the General Assembly a chance to reconsider ill-advised, mass incarceration legislation.  This is not the kind of “criminal justice reform” the governor campaigned for and that voters resoundingly elected him to implement.

As someone who has helped draft numerous sentencing laws over the years, including a similar bill that had disastrous effects, I request Governor Lee to use his constitutional powers to let us catch our breath and work together for a long-term solution which will make us all safer.

Seriously considering resentencing in high-profile Cleveland corruption case (while seriously enjoying rewatching puppet trial parody)

Though the initial federal sentencing of former Cleveland area county commissioner Jimmy Dimora took place a decade ago, I still recall that Dimora received one of the longest prison terms ever given for political corruption.  My 2012 post about his sentencing to 28 years in federal prison provides some background on the case, and it notes that his attorneys then argued Dimora should get less prison time due to his ailing physical condition and age.  Fast forward a decade, and this local story highlights that what's old is new again in federal sentencing for Dimora.  The article is headlined "Ex-Cuyahoga County Commissioner Jimmy Dimora’s health is failing; attorney asks for release from prison at re-sentencing," and here are excerpts:

Disgraced former Cuyahoga County Commissioner Jimmy Dimora’s health is failing, and his defense attorney asked a judge to consider releasing him from prison when Dimora is re-sentenced on corruption charges next month. Attorney Philip Kushner urged U.S. District Judge Sara Lioi to have leniency for Dimora, according to a court filing last week. Lioi must re-sentence Dimora after the judge overturned convictions on two of Dimora’s 32 charges in one of the largest corruption cases in Ohio history.

Dimora, who will turn 67 in June, has a long list of medical issues that Kushner said should result in Lioi giving Dimora significantly less prison time than the original 28-year sentence. He was convicted of engineering a pay-to-play scandal that led to an overhaul of county government in 2012. “During his 10 years of incarceration, his health has deteriorated,” Kushner wrote in the filing....

Dimora’s cohort and co-defendant, former county Auditor Frank Russo, died last month. His death came about two years after he was released from prison, in part, because of his failing health and the coronavirus pandemic.

Kushner argued for a significantly lesser sentence or release for Dimora based on his age, health and the steep punishment Lioi doled out in 2012. Dimora, he wrote, suffers from a heart defect, an intestinal disorder and an inner-ear equilibrium disease. He needs knee-replacement surgery. He suffered a stroke in prison, is diabetic and uses a wheelchair, according to the filing. Dimora contracted COVID-19 twice in prison, including once in which he became “very ill,” according to Kushner. Dimora is currently serving time in the Federal Medical Center Devens in Massachusetts, which houses seriously ill inmates.

Kushner also argued that similar felons typically serve far less time, somewhere between 12 and 15 years, not the 28 that Dimora is serving.

The 6th U.S. Circuit Court of Appeals ordered Lioi to re-examine the case in the wake of a 2016 U.S. Supreme Court decision in which the justices clarified the definition of an “official act” taken by a public official in a bribery case. The ruling meant that Lioi’s instructions to the jury were outdated and incorrect.  Lioi in March overturned two convictions that focused on contractor Nicholas Zavarella, who built an outdoor kitchen and retaining wall at Dimora’s home for free....

Federal prosecutors are expected to file their own sentencing memorandum with Lioi in the days before the hearing June 8.

Whether Dimora receives a significantly reduced federal sentence is a serious matter, perhaps even literally deadly serious for him.  But Dimora's name and his high-profile case reminded me of a not-quite-so-serious aspect of his trial.  Specifically, as this 2012 NBC News piece detailed, one news station's local coverage of the Dimora trial itself made national and international news:

It's courtroom drama crossed with "Sesame Street," as a television station barred from using cameras during a high-profile corruption trial covers the highlights with a nightly puppet show. It stars a talking squirrel "reporter" who provides the play-by-play in an exaggerated, "you won't believe this" tone.

"It's a satirical look at the trial and, again, I think we have it appropriately placed at the end of the newscast," WOIO news director Dan Salamone said Thursday. He said the puppets are in addition to the station's regular coverage of the Akron federal trial of ex-Cuyahoga County Commissioner Jimmy Dimora, the longtime Democratic power broker in Cleveland. "It's not intended in any way to replace any of the serious coverage of the trial," Salamone said.

Especially on a Monday afternoon when everyone could surely use a bit of levity, I highly recommend watching at least the first few segments of "The Puppet's Court":

• Dimora Trial: Puppet's Court Day 1
• Dimora Trial: Puppet's Court Day 2
• Dimora Trial: Puppet's Court Day 3
• Dimora Trial: Puppet's Court Day 4

Each of these segments is only about 90 seconds long, though I think there are at least 10 of them if you keep watching. I am so glad they are still on YouTube.

UPDATE FROM JUNE 8, 2022:  This local article reports on the new federal sentencing for Jimmy Dimora. Here is how it starts:

A federal judge on Wednesday shaved five years off former Cuyahoga County Commissioner Jimmy Dimora’s sentence for engineering a pay-to-play style of government that thrived for years. U.S. District Judge Sara Lioi handed down the new sentence during a two-hour hearing in federal court in Akron.  In 2012, Lioi sentenced Dimora to 28 years in prison.

The new sentence means Dimora’s release date is moved up to 2031. He was scheduled to be released in February 2036, a date that had included a four-year reduction for good behavior behind bars.

Multiple Tennessee executions put on hold as Gov orders "third-party review" lethal injection process

Tennessee had multiple executions scheduled for 2022.  But, as reported in this post a few weeks ago, the first of these scheduled executions was postponed by the Gov at the last minute because of concerns with the state's lethal injection process.  Now, as reported in this local article, "Tennessee Gov. Bill Lee has paused all executions in the state through 2022." Here are the details and context:

Lee announced the move in a news release early Monday morning, saying the pause will give time for a third-party review and a complete assessment over the lethal injection process.  “I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said.  “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”...

U.S. Attorney Ed Stanton will oversee the independent review for Tennessee, the release said.  The review will include an exploration into circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins ahead of the April 21 execution, clarity of the lethal injection process manual that was last updated in 2018 and adherence to testing policies since the update.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” Lee said.  “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Three of four executions in Tennessee have been carried out by electric chair since 2019, the release said. Death row inmates are given the choice between lethal injection and the electric chair in Tennessee.  Lethal injection is the default method for execution in the state.

Smith's execution was set to be the first since February 2020 due to COVID-19 delays.  He was one of five death row inmates set to be executed in Tennessee this year.  The Tennessee Supreme Court will set new dates for the 2022 executions, the release said.

Governor Lee's official statement is available at this link.

An (incomplete) account of the dynamic state of federal criminal justice reform politics

This new Politico article, headlined "Trump’s criminal justice reform bill becomes persona non grata among GOPers," provides an interesting (but I think incomplete) account of the current state of federal criminal justice reform politics.  I recommend the full piece, and here are some excerpts:

The First Step Act was not just hailed as a rare bipartisan achievement for the 45th president but as the beginning of a major shift in GOP politics, one that would move the party past the 1980s tough-on-crime mindset to a focus on rehabilitation, racial fairness and second chances.

Three-and-a-half years later, few Republicans — Trump included — seem not at all interested in talking about it. With spikes in crime registering as a top concern for voters, Republicans have increasingly reverted back to that 1980s mindset. Talk of additional legislation has taken a back seat to calls for enhanced policing and accusations that Democratic-led cities are veering toward lawlessness....

For some advocates, the Republican Party’s cooling to criminal justice reform confirms the belief the interest wasn’t ever sincere. But for lawmakers and advocates on the right who worked on the First Step Act, the shift has been similarly disconcerting, raising concern it freezes political momentum for further reform.

“I personally think there’s just as many people that want to do criminal justice reform as the last several years, but I think their voices are quiet now, and those that are opposed to the First Step Act are still opposed and have gotten louder,” said Brett Tolman from the conservative group Right on Crime.  Tolman added that much work continues behind the scenes. “It feels like we just have to bide our time a bit and get past when the emotion of all of the political rhetoric is at the forefront.”...

Republicans who support reforms say the party can be both in line with that vision and adopt a tough-on-crime posture — that voters will be able to differentiate between crackdowns on violent crime and accountability in the justice system. “Reform and calling out truths can coexist. It’s not a binary decision.  And there are achievable solutions available,” said Zack Roday, a Republican political strategist.

But trends aren’t helping the reformer’s cause. In the past year, violent crime rates have risen dramatically, with at least 12 major U.S. cities breaking annual homicide records in 2021.  Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.  Republicans pointed to the trends as evidence of a Democratic failure....

Despite the changing political winds, reform advocates still say they are optimistic that Congress will pass the EQUAL Act, which would end federal sentencing disparities between crack and cocaine offenses.  Supporters of the bill, which the House passed in September with the support of some of the most conservative members, say it would address racial disparities, noting 90 percent of those serving federal time for crack offenses are Black....

So far, the bill has the support of 11 Republican senators, the National District Attorneys Association, the Major Cities Chiefs Association and the American Civil Liberties Union.  But congressional aides warn the legislation is not a slam dunk, especially without the support of Grassley, now the top Republican on the Judiciary Committee.  This week, the senator introduced a separate bill tackling crack and cocaine sentencing disparities.  And in a midterm election year when public focus is on rising crime in communities, some conservatives say they do not see a path forward for federal reforms.

“From the federal government I don’t see anything passing this year on criminal justice reform, I think they’re done. I think the politics of it are too difficult,” said Charles Stimson, a crime expert at the conservative Heritage Foundation. “People will probably be motivated in the fall to vote for folks who take the law and order approach and they’re not going to believe people who say they don’t have a crime problem.”

Though covering a lot of ground well, this Politico piece seem to me to fail to highlight how much crime and punishment had become a part of this era's broader culture wars.  Of particular note, I think George Floyd's murder, which brought "defund the police" to the forefront of the political arena, served to derail some of the bipartisanship that got the FIRST STEP Act to the finish line.  And thereafter with rising crime concerns, the GOPs recent affinity for a certain brand of populism makes it ever more likely for a return to the classic tough-on-crime tune.  (It also bears noting, in this context and others, that while Prez Trump leaned into prison reforms all through 2018 and actively helped get the FIRST STEP Act done, Prez Biden has made no public effort to push criminal justice reforms others than politically-fraught policing reforms.) 

And yet, adding ever more nuance to a complicated political story, there still seems to be persistent bipartisan energy for not just the EQUAL Act, but also for other smaller reforms. For example, as noted here, just six weeks ago, the US House overwhelmingly voted, by a margin of 405-12, for the Prohibiting Punishment of Acquitted Conduct Act of 2021.  And various modest proposed marijuana reforms, such as the SAFE Banking Act and a variety of bills to enhance research or expand expungements, are garnering bipartisan support in one form or another.     

Stated differently, I share Brett Tolman's general view that there are still plenty of folks on both sides of the aisle that are considerably interested in considerable criminal justice reforms.  But, critically, as political and criminal justice realities on the ground have changed, leaders of Congress must change their vision of the possible circa May 2022.  More modest bills may have to get more attention, and the "best" cannot be the enemy of the "good enough."   Small reform victories are still victories, and I would hope that the type of criminal justice reform bills that pass by a margin of 405-12 in one chamber should be able to make some progress in the other.  But hoping for Congress to do better obviously does not mean it will anytime soon.  

"Donald Trump’s Clemencies: Unconventional Acts, Conventional Justifications"

The title of this post is the title of this paper now available via SSRN and authored by Austin Sarat, Laura Gottesfeld, Carolina Kettles and Olivia Ward.  Here is its abstract:

During his four years as president Donald Trump’s use of the clemency power generated considerable controversy.  Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations and used clemency to favor a rogues’ gallery of cronies, celebrities and those whose crimes showed particular contempt for the law.  However, few scholars have examined the justifications he offered when he granted pardons and commutations.  This paper fills that gap.  We argue that because the clemency power sits uneasily with democracy and the rule of law when presidents use this power they feel the need to supply justifications.  We report on a study of Trump’s clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

"Abolishing the Evidence-Based Paradigm"

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

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform.  This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration.  It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing.  The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics — lead the way and purports to have no agenda beyond identifying effective, efficient reforms.

This Article challenges the paradigm’s core claims.  It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter.  In other words, the evidence-based paradigm is political, and it does have an agenda.  And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens — rather than challenges — the existing system.

The Article argues that, if left unchallenged, the evidence-based paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity.  Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision.