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January 14, 2022

Supreme Court takes up procedural issues around challenging execution methods and habeas matters

Via this order list, the US Supreme Court this afternoon granted certiorari in five new cases, two of which involve criminal procedure.  This SCOTUSblog post reviews the high-profile religion case of the bunch and provides this very brief account of the two criminal matters:

Though there were less than a dozen executions throughout the US last year, the Supreme Court now will decided three notable death penalty cases this Term on jury and penalty phase procedures (Tsarnaev), on how executions can be carried out when the condemned seeks a spiritual advisor (Ramirez) and now on how condemned can proceed with challenges to execution methods (Nance).  So while less than .001% of incarcerated persons face execution in recent years, about 5% of the Supreme Court's docket this year involved death penalty matters.

January 14, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Illinois judge decides to acquit teen in sexual assault case to avoid four-year mandatory minimum term

The New York Times has this interesting new article about a troubling example of how mandatory minimum sentences can (and often do) end up distorting the operation of our justices systems.  The full headline of the article provides the essentials: "Judge Tosses Teen’s Sexual Assault Conviction, Drawing Outrage; Drew Clinton, 18, faced four years in prison under Illinois sentencing guidelines. But the judge, Robert Adrian, overturned his conviction this month, saying the sentence was “not just." Here are the details:

Last October, a judge in western Illinois convicted an 18-year-old man of sexually assaulting a 16-year-old girl while she was unconscious at a graduation party.

The man, Drew Clinton, faced a mandatory minimum sentence of four years in prison, but at a hearing earlier this month, Judge Robert Adrian reversed his own decision and threw out the conviction.  The nearly five months Mr. Clinton had served in jail, the judge said, was “plenty of punishment.”

The decision, which was reported by the Herald-Whig of Quincy, Ill., has dismayed organizations that help survivors of sexual assault, the Adams County state’s attorney’s office and the girl who reported the assault, who told a local television station that she was present when Judge Adrian overturned Mr. Clinton’s conviction. “He made me seem like I fought for nothing and that I put my word out there for no reason,” she told WGEM-TV. “I immediately had to leave the courtroom and go to the bathroom. I was crying.”...

Mr. Clinton was charged with criminal sexual assault on June 1, 2021.  The girl reported that he sexually assaulted her after she became intoxicated at a party on May 30, according to court records.  During the bench trial, she testified that she was unconscious and woke up to find a pillow covering her face and Mr. Clinton assaulting her....

Mr. Schnack [a lawyer for Mr. Clinton] argued that mandatory sentences take away a judge’s discretion. “Every individual should be judged by the court in doing its sentence and not by a legislator years and hundreds of miles removed,” he said, according to the transcript.

He also said that prosecutors had not proved their case against Mr. Clinton and that the girl was able to consent.  Mr. Schnack said that she made many decisions that night, including drinking and stripping down to her underwear to go swimming. “They weren’t the best decisions,” he said. “She did know what was going on.”

Judge Adrian said he knew that, by law, Mr. Clinton was supposed to serve time in prison, but in this case, the sentence was unfair, partly because Mr. Clinton turned 18 just two weeks before the party and, until his arrest, had no criminal record.  “That is not just,” Judge Adrian said during the Jan. 3 hearing, according to the transcript. “There is no way for what happened in this case that this teenager should go to the Department of Corrections. I will not do that.”

He said that if he ruled that the sentence was unconstitutional, his decision would be reversed on appeal.  Instead, he said, what he could do was “find that the people failed to prove their case.” Judge Adrian chastised the parents and other adults who he said provided liquor to the teenagers at the party and failed “to exercise their parental responsibilities.”...

Carrie Ward, the chief executive of the Illinois Coalition Against Sexual Assault, said the judge’s comments and his decision to throw out Mr. Clinton’s conviction were “a clean and clear example of victim blaming.” By highlighting the girl’s clothing and chastising the hosts of the party, the judge shifted “100 percent of the blame from the perpetrator, from the actual person who committed the sexual assault, to everyone else, including the victim,” Ms. Ward said.

I am troubled that the judge here felt compelled to nullify guilt because he was unable or unwilling to develop an argument that a four-year prison term would be unjust and possibly illegal. I do not know Illinois law well enough to know if state constitutional jurisprudence or other doctrines could have provided a basis for the judge to rule that he had to be able to give effect to the defendant's youth and other mitigating factors. But if the judge made a compelling case for a more just sentence, perhaps prosecutors would not have appealed or perhaps appellate courts would have embraced the analysis. Instead, we have a case in which a judge seems to want to believe that two legal wrongs make a right.

January 14, 2022 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Compassionate Release and Decarceration in the States"

The title of this post is the title of this notable new paper authored by Renagh O'Leary now on SSRN. Here is its abstract:

Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest.  Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration.  Compassionate release early release from prison based on a serious or terminal medical condition"is the only early release mechanism available in nearly every state. This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states.

So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population.  The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release.  People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release.  They are also the age group most likely to be incarcerated for violent convictions.  This Article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release even when they are not outright barred by their convictions.  This Article argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions.  This Article models this approach with concrete suggestions for how states can reform their compassionate release measures to reach the hardest cases.

January 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

January 13, 2022

California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin

Under California law, the Governor reviews any recommendation of parole by a convicted murderer.  As explained in this new Los Angeles Tomes op-ed, California Governor Gavin Newsom has decided to reverse a parole decision in the high-profile case of Sirhan Sirhan.  Here is how the op-ed starts:

In 1968, Sirhan Sirhan assassinated Sen. Robert F. Kennedy just moments after Kennedy won the California presidential primary.  Sirhan also shot and injured five bystanders. Decades later, Sirhan refuses to accept responsibility for the crimes.

California’s Board of Parole Hearings recently found that Sirhan is suitable for parole. I disagree. After carefully reviewing the case, including records in the California State Archives, I have determined that Sirhan has not developed the accountability and insight required to support his safe release into the community. I must reverse Sirhan’s parole grant.

A copy of the Governor’s parole reversal decision can be found here.  Interestingly, and surely not coincidentally, Gov Newsom also decided today to announce a large number of clemency grants, as this press release details: "Governor Gavin Newsom today announced that he has granted 24 pardons, 18 commutations and 5 reprieves."

Prior related posts:

January 13, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?

The question in the title of this post came to mind when I saw just the latest example of a federal circuit court upholding a lengthy federal sentence based in part on acquitted conduct.  This  latest example was handed down yesterday by a Seventh Circuit panel in US v. McClinton, No. 20-2860 (7th Cir. Jan 12, 2022) (available here), and here are the basics (with cites removed):

After transfer to adult court ([Dayonta] McClinton was three months away from his eighteenth birthday at the time of the robbery), a jury found McClinton guilty of robbing the CVS in violation of 18 U.S.C. § 1951(a); and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The jury found him not guilty of the indicted crimes of robbery of Perry, in violation of 18 U.S.C. § 1951(a), and causing death while using a firearm during and in relation to the robbery of Perry, in violation of 18 U.S.C. § 924(j)(1).  At sentencing, the district court concluded, using a preponderance of the evidence standard, that McClinton was responsible for Perry’s murder.  The district court judge therefore enhanced McClinton’s offense level from 23 to 43, but also varied downward to account for McClinton’s age and the sentences of his co-defendants, ultimately sentencing him to 228 months in prison.....

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”....  Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations....

But despite the long list of dissents and concurrences on the matter, it is still the law in this circuit — as it must be given the Supreme Court’s holding — that a sentencing court may consider conduct underlying the acquitted charge, so long as that conduct has been found by a preponderance of the evidence. Until such time as the Supreme Court alters its holding, we must follow its precedent.  McClinton’s counsel advocated thoroughly by preserving this issue for Supreme Court review....

In this case Perry’s murder clearly occurred in the course of the planned robbery. Dividing up the proceeds of the robbery was part and parcel of the plan to obtain cash and drugs for the perpetrators. The fact that, in order to avoid detection, the group traveled a safe distance away from the CVS and waited a few minutes to divvy up the drugs and cash, does not sever its connection to the crime. It was Perry’s announcement that he intended to keep the stolen drugs for himself that drew McClinton’s ire. And it was owing to the prior decision of McClinton, Perry, and others to arm themselves for the robbery that ensured McClinton had a firearm at the ready to settle the dispute by shooting Perry. There is no doubt that under Watts, the murder was relevant conduct that could be used to calculate McClinton’s sentence.

Because less than 3% of all federal sentences are imposed after trials (the rest are after pleas), and because there many not be split verdicts in all those trials, there may only be a few hundred federal cases each year in which acquitted conduct sentencing is even possibly an issue. But often the stakes in those cases can be high with acquitted conduct pushing up guideline ranges many years or even decades as in this McClinton case.  (The upcoming Elizabeth Holmes case could have a lot turn on acquitted conduct, though I suspect the feds might not press guideline enhancements quite so hard in such a high-profile setting.) 

And, of course, acquitted conduct guideline enhancements have be pushing up federal guideline ranges for 30+ years now.  So, I suspect tens of thousands of years of federal prison time has been imposed based on acquitted conduct.  But I wonder if anyone has tried to do more than this back-of-the-envelope calculation.

January 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

"A Call to Reform Federal Solitary Confinement"

The title of this post is the title of this effective new report authored by Ilanit Turner and Noelle Collins with the Texas Public Policy Foundation.  Here is part of its executive summary (with cited removed):

Federal solitary confinement is in desperate need of repair. After a 40-year spike in federal incarceration rates beginning in 1980 has tapered off, a bipartisan consensus for solitary confinement reform is finally starting to crystallize.

What was once considered a last-resort disciplinary practice in federal prisons has morphed into a default option when other correctional and administrative protocols fail on their first try.  This paper is the latest installment in the Texas Public Policy Foundation’s series of publications entailing prescriptions for local, state, and federal prison reform. Our research is especially timely as prison officials continue to misuse segregated housing units for medical isolation to combat COVID-19.  Because prison officials know they have limited alternatives to curb transmission, improperly using COVID-19 as a justification for solitary confinement is apparently a tempting option.  Warehousing sick inmates poses a unique challenge as those who report symptoms are unjustifiably forced to endure an experience known to cause mental and physical harm.

The current landscape of solitary confinement data released on the Federal Bureau of Prisons (BOP) website is insufficient.  The information on the precise order of operations for the types of infractions that land inmates in solitary is vague, publications of hearings considered for segregation are unavailable, and it is nearly impossible to determine the total length of time served in solitary confinement by each inmate.  Holding BOP accountable for this information should be emphasized if change is to be effected.

Any information that is known about solitary confinement reaches the outside world a day late and a policy short.  Charles Dickens (1842), a notable critic of the American penitentiary system, alluded to the effect of ignorance of solitude in his prescient observation a century and a half earlier, “this slow and daily tampering with the mysteries of the brain, [is] immeasurably worse than any torture of the body… and therefore I denounce it, as a secret punishment which slumbering humanity is not roused up to stay”. Little has changed. The prolonged effects of solitary confinement take the form of irreversible physical and mental health disorders.  When isolated inmates are granted the long-awaited second chance for release right after solitary confinement, they reoffend in rates disproportionately higher than the general prison population. Long durations in segregation exacerbate mental illnesses, leading to bouts of psychosis.  This prevents inmates from integrating back into the labor market, much less society in general, and is correlated with higher rates of criminal episodes.

The Foundation offers a list of policy solutions to improve the status quo of federal solitary confinement.  First and foremost, data transparency is essential. Pulling back the bureaucratic curtain of the federal prison system will reinforce administrative rectitude when deciding to use solitary confinement. Enhancing due process and ongoing review is another way to redirect prison officials to alternative punitive measures.  The BOP should also consider expanding educational and rehabilitative programming for inmates in isolation, as these changes will reduce occupancy and recidivism rates with a single policy adjustment.  Lastly, the BOP system owes it to the public to reduce violence and suicide for inmates in solitary by improving mental health assessments.  Addressing these issues can also reveal areas of endemic corruption that lead to further misuse of this practice. 

January 13, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

January 13, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

January 12, 2022

"No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action"

The title of this post is the title of this notable new essay authored by Andrew Manuel Crespo now available via SSRN.  Here is its abstract:

The American penal system is a system of massive, oppressive, racially unjust incarceration.  It is also, to quote the Supreme Court, a “system of pleas.”  The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths.  Mass incarceration is a predictable result.

But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point.  That Achilles heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power.  Organized to act together, this community has unique resources. Most notably, they have the power to say “not guilty” when asked “how do you plead?” If done together, this simple but profound act of resistance would grind the penal system to a halt.  Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial.  This fact is what makes plea bargaining so essential to mass incarceration in the first place.  Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially radical transformative power — a decarceral power, a democratic power — that arises from the penal system’s massive overextension.

Susan Burton, a formerly incarcerated organizer, floated this idea in the pages of the New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation.  This essay is the first installment of a broader project that aims to conceptualize, strategize, and test the limits of Burton’s idea. The immediate goals here are to chart some of the contours of Burton’s core insight — examining both its promise and its hurdles — while marking some key questions for future exploration.

January 12, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (24)

Split New Jersey Supreme Court rules NJ constitution requires allowing juvenile offenders "to petition for a review of their sentence after they have served two decades in prison"

A helpful reader ensured I did not miss the fascinating New Jersey Supreme Court ruling in NJ v. Comer, A-42-20)(NJ Jan 10, 2022) (available here), regarding limits on extreme juvenile sentencing.  The start of the opinion for the Court provide the context and the essentials of the ruling:

This appeal raises challenging questions about the constitutional limits that apply to sentences for juvenile offenders.

The law recognizes what we all know from life experience -- that children are different from adults.  Children lack maturity, can be impetuous, are more susceptible to pressure from others, and often fail to appreciate the long-term consequences of their actions. Miller v. Alabama, 567 U.S. 460, 477 (2012).  They are also more capable of change than adults. Graham v. Florida, 560 U.S. 48, 68 (2010).  Yet we know as well that some juveniles -- who commit very serious crimes and show no signs of maturity or rehabilitation over time -- should serve lengthy periods of incarceration.

The issue before the Court is how to meld those truths in a way that conforms to the Constitution and contemporary standards of decency.  In other words, how to impose lengthy sentences on juveniles that are not only just but that also account for a simple reality: we cannot predict, at a juvenile’s young age, whether a person can be rehabilitated and when an individual might be fit to reenter society.

The question arises in the context of two juveniles who committed extraordinarily serious crimes for which they received long sentences.  In one case, the juvenile offender, who was convicted of felony murder, will not be released for three decades and cannot be considered for parole throughout that time.  In the other appeal, it will be more than four decades before the 14-yearold offender, convicted of purposeful murder, will first be eligible to be considered for parole.

Both juveniles argue that their sentences violate federal and state constitutional provisions that bar cruel and unusual punishment.  See U.S. Const. amend. VIII; N.J. Const. art. I, ¶ 12.  They ask the Court to find that a mandatory sentence of at least 30 years without parole, which N.J.S.A. 2C:11- 3(b)(1) requires, is unconstitutional as applied to juveniles.

We decline to strike that aspect of the homicide statute. But we recognize the serious constitutional issue defendants present under the State Constitution. The Court, in fact, anticipated the question in 2017 and asked the Legislature to consider amending the law to allow juvenile offenders who receive sentences with lengthy periods of parole ineligibility to return to court years later and have their sentences reviewed. State v. Zuber, 227 N.J. 422, 451-53 (2017).

Today, faced with actual challenges that cannot be overlooked, we are obligated to address the constitutional issue the parties present and cannot wait to see whether the Legislature will act, as the State requests. That approach is consistent with the basic roles of the different branches of government.  The Legislature has the responsibility to pass laws that fix the range of punishment for an offense; the Judiciary is responsible to determine whether those statutes are constitutional.  Under settled case law, courts also have the authority to act to protect statutes from being invalidated on constitutional grounds.

Here, the statutory framework for sentencing juveniles, if not addressed, will contravene Article I, Paragraph 12 of the State Constitution.  To remedy the concerns defendants raise and save the statute from constitutional infirmity, we will permit juvenile offenders convicted under the law to petition for a review of their sentence after they have served two decades in prison.  At that time, judges will assess a series of factors the United States Supreme Court has set forth in Miller v. Alabama, which are designed to consider the “mitigating qualities of youth.” 567 U.S. at 476-78 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

We provide for the hearing, rather than strike the homicide statute on constitutional grounds, because we have no doubt the Legislature would want the law to survive. The timing of the hearing is informed by a number of sources, including acts by the Legislature and other officials.

At the hearing, the trial court will assess factors it could not evaluate fully decades before -- namely, whether the juvenile offender still fails to appreciate risks and consequences, and whether he has matured or been rehabilitated.  The court may also consider the juvenile offender’s behavior in prison since the time of the offense, among other relevant evidence.

After evaluating all the evidence, the trial court would have discretion to affirm or reduce the original base sentence within the statutory range, and to reduce the parole bar to no less than 20 years.  A juvenile who played a central role in a heinous homicide and then had a history of problematic behavior in prison, and was found to be incorrigible at the time of the later hearing, would be an unlikely candidate for relief.  On the other hand, a juvenile who originally acted in response to peer pressure and did not carry out a significant role in the homicide, and who presented proof at the hearing about how he had been rehabilitated and was now fit to reenter society after two decades, could be an appropriate candidate for a lesser sentence and a reduced parole bar.

The Appellate Division rejected the juveniles’ constitutional claims. We therefore reverse and remand both matters for resentencing. We express no opinion on the outcome of either hearing.

Three Justices dissented from this holding by the NJ Supreme Court, and the dissenting opinion begins this way:

The majority today holds that the New Jersey Constitution requires a 20- year lookback period for juvenile offenders who were waived to adult court and tried and convicted as adults of homicide offenses.  We acknowledge our colleagues’ view that the New Jersey Constitution permits our intervention here.  But we are not legislators imbued by our Constitution with such authority. In our view, the majority today act “as legislators” instead of as judges. Gregg v. Georgia, 428 U.S. 153, 175 (1976). Thus, we respectfully dissent.

The majority asserts that it is required to act by our Constitution and landmark juvenile sentencing cases from both this Court and the United States Supreme Court. See Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); State v. Zuber, 227 N.J. 422 (2017).  The cited cases hold that, for the purpose of sentencing, the Constitution requires courts to treat juveniles differently and to consider certain factors before sentencing them to life without parole or its functional equivalent.  We believe that our current sentencing scheme fulfils that constitutional mandate.  Thus, it is not our prerogative to impose an additional restriction on juvenile sentencing.

In our view, a 30-year parole bar for juveniles tried as adults and convicted of homicide conforms with contemporary standards of decency, is not grossly disproportionate as to homicide offenses, and does not go beyond what is necessary to achieve legitimate penological objectives.

Accordingly, we believe that the majority’s imposition of a 20-year lookback period for homicide offenses is a subjective policy decision rather than one that is constitutionally mandated.  As such, it must be left to the Legislature, which could have considered all of the factors the majority has, and some it has not.  Instead, the majority joins a small minority of states with lookback periods imposed by judicial fiat rather than by statute.

January 12, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

US Sentencing Commission issues new report on "Recidivism of Federal Drug Trafficking Offenders Released in 2010"

Cover_recidivism-drugs-2021The US Sentencing Commission today published some more findings from its big eight-year recidivism study of federal offenders released from prison in 2010. This new 144-page report is titled "Recidivism of Federal Drug Trafficking Offenders Released in 2010," and this USSC webpage provides this overview with key findings:

Overview

This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,783 federal drug trafficking offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism. This report also compares recidivism outcomes for federal drug trafficking offenders released in 2010 to drug trafficking offenders released in 2005.

The final study group of 13,783 drug trafficking offenders satisfied the following criteria:

  • United States citizens
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010
  • Not reported dead, escaped, or detained
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records)

Key Findings

  • The rearrest rate for drug trafficking offenders released in 2010 was similar to the rate for those released in 2005 despite intervening changes in the criminal justice system: the Supreme Court’s decision in Booker, adjustments to sentencing of crack cocaine offenses, and increased use of evidence-based practices in federal supervision.
  • The rearrest rate for a new offense or an alleged violation of supervision conditions was similar for drug trafficking offenders (47.9%) as compared to all other offenders released in 2010 (50.4%).
  • Of those drug trafficking offenders released in 2010 who were rearrested, the median time from re-entry to the first rearrest was 23 months. By comparison, the median time from re-entry to the first rearrest for all other offenders was 16 months.
  • Crack cocaine trafficking offenders were rearrested at the highest rate (57.8%) of any drug type, while powder cocaine trafficking offenders were rearrested at the lowest rate (41.8%). Rearrest rates for other primary drug types ranged from 42.7 percent to 46.7 percent.
  • Approximately one-third (32.0%) of drug trafficking offenders who were rearrested had drug-related offenses (either drug trafficking, drug possession, or another drug offense) as their most serious new charge at rearrest. Nearly one-fifth (19.9%) were charged with assault at rearrest.
  • Criminal history was strongly correlated with rearrest. Drug trafficking offenders’ rearrest rates ranged from 29.9 percent for offenders with zero criminal history points to 74.9 percent for offenders with 13 or more criminal history points.
  • Age at release into the community also was strongly correlated with likelihood of rearrest. Drug trafficking offenders released prior to age 21 had the highest rearrest rate of 70.1 percent, while drug trafficking offenders who were 60 years or older at the time of release had the lowest rearrest rate of 16.4 percent.
  • Over an eight-year follow-up period, 47.9 percent of drug trafficking offenders in the 2010 release cohort were rearrested compared to 50.0 percent of drug trafficking offenders in the 2005 release cohort.

January 12, 2022 in Drug Offense Sentencing, Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

"The Original Criminal Jury"

The title of this post is the title of this notable new paper authored by Jeff Hetzel recently posted to SSRN.  Here is its abstract:

In early America, the criminal jury decided matters of law.  The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises.  The presiding judge instructed the jury that it had the power to decide matters of law.  Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury.  Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution.  But a careful examination of early practice reveals that the jury held no more power to nullify than it does today.  Rather, the early American jury held the power to do what judges today are expected do — to decide what the law means without deciding its morality.

This Article reintroduces this forgotten — yet still constitutionally binding — model of the criminal jury.

January 12, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

January 11, 2022

"Compassionate Release as Compassionate Decarceration: State Influence on Federal Compassionate Release and the Unfinished Federal Reform"

The title of this post is the title of this new paper authored by Chun Hin Jeffrey Tsoi now available via SSRN. Here is its abstract:

The First Step Act's (FSA) compassionate release reform was a “modest but necessary” step; the pandemic and the threat it posed to the incarcerated population ought to prompt reflections on what the next steps should be.  This Essay is intended to serve as both a brief historical review of state influence on federal compassionate release, and as a reflection on the unfinished compassionate release reform in terms of DOJ’s execution. 

Part I briefly surveys the trajectory of 18 U.S.C. § 3582(c) from the Sentencing Reform Act (SRA) to the Prisoner-initiated & Court-ordered (PICO) compassionate release provision in the FSA, and its application in the pandemic.  Part II supplements the compassionate release literature by exploring the history of PICO compassionate release in state law as a backdrop of the long-awaited federal reform allowing prisoners to petition for their own release, and it proposes that state practices, especially that of New Jersey, might have influenced the introduction and passage of FSA in part through the Model Penal Code.  Part III suggests that the arc of compassionate release reform in federal law is nevertheless unfinished, with the Department of Justice’s (DOJ) objection practices being part of the necessary change.  Using data and cases from the District of Columbia, whose PICO compassionate release statute is modeled after federal law and clearly intended as a response to the pandemic, this Essay proposes that the DOJ's perspective and practices must change to adapt to the essential purpose of compassionate release: addressing mass incarceration in America with compassion.

January 11, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New paper explores "Reimagining Judging" in the US "after a decades long love affair with prison"

Retired US District Judge Nancy Gertner, who is now teaches at Harvard Law School, has this great new 44-page report titled "Reimagining Judging" released as part of the the Square One Project's Executive Session on the Future of Justice Policy.  This press release and this executive summary provides an overview of the report, but my post title draws on this passage from the report that helps frame how Judge Gertner approaches this critical project:

Countless papers have been written about the perils of unstructured discretion — discrimination and bias chief among them (Frankel 1973).  But I want to raise another issue: The unique problem of giving judges discretion in sentencing at this moment in time, after a decades long love affair with prison.  How can judges who have been schooled in the extraordinarily punitive system that produced mass incarceration for the past thirty years suddenly operate in a system that — one hopes — will reflect wholly different premises?  How can a judicial system based on one set of assumptions suddenly enact or apply a wholly different approach?  These are precisely the same questions we have asked of police, correctional officers, and prosecutors in a changed criminal legal system.  Is change possible in juvenile correctional facilities that reflected hard-nosed punishment, too often accompanied by physical and sexual abuse scandals?  Is change possible with police schooled to be warriors, not guardians?  Although surprising at first blush, assuming that law-following judges will enforce such institutional changes — much like with these other actors — is not enough.

In this paper, I touch first on judicial resistance to recent modest criminal law reforms, one example of what I have described elsewhere as the phenomenon of “the habits of mass incarceration” (Gertner 2020).  Then I sketch out — very briefly — the factors that make judges resistant to change: constraints that apparently limit a judge’s horizons, cognitive influences that they ignore, and political pressures that are unexamined.  Finally, I propose a way to effect change — a very preliminary suggestion.

Several caveats: I am generalizing from my experiences from 17 years in the federal system.  This is not an empirical paper.  Not all judges fit these descriptions.  Nor is this paper about what needs to be changed in the broader criminal legal system; others are dealing with those profound and overarching questions.  Finally, the message here is not that judicial change is impossible, only that it is difficult.  Any “reimagining project” must take judicial impediments to change into account; this paper considers how to revamp the criminal legal system through the lens of those who must apply that system’s rules.

January 11, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (2)

Still more data linking recent surge in gun sales to recent surge in murders

This new Atlantic piece, authored by Jeff Asher and Rob Arthur, provides yet another set of data points detailing the possible connection between an increase in gun purchases and a consequent increase in murders. The piece's full title summarizes its themes: "The Data Are Pointing to One Major Driver of America’s Murder Spike: A massive increase in gun sales in early 2020 seems to have contributed to the recent rise in homicides." Here are excerpts from the start and end of the piece:

After murders in the United States soared to more than 21,000 in 2020, researchers began searching for a definitive explanation why. Many factors may have contributed, such as a pandemic-driven loss of social programs and societal and policing changes after George Floyd’s murder. But one hypothesis is simpler, and perhaps has significant explanatory power: A massive increase in gun sales in early 2020 led to additional murders.

New data from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) suggest that that indeed may have been the case. According to the data, newly purchased weapons found their way into crimes much more quickly and often last year than in prior years. That seems to point to a definitive conclusion — that new guns led to more murders — but the data set cannot prove that just yet....

Right now, we know that gun sales rose dramatically starting in March 2020, and that murder—driven by gun murders—increased substantially a few months later. We have strong evidence that more people were carrying guns before murder went up in 2020, and the ATF data tell us that newly purchased firearms were used in more crimes than usual. It stands to reason that new guns helped feed 2020’s murder surge, though the data to confirm this conclusion remain agonizingly out of reach. The data aren’t perfect, but they’re strongly suggestive: More guns are behind America’s murder spike.

A few of many prior related posts:

January 11, 2022 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

January 10, 2022

Advocacy groups giving poor first-year grades to Prez Biden on criminal justice reform

This new Law360 piece, headlined "At 1-Year Mark, Groups Discontent With Biden Justice Reform," reports on an interesting effort to "grade" the Biden Administration for its criminal justice record at the end of its first year. I recommend the piece in full, and here are excerpts:

President Joe Biden's progress on criminal justice reform after nearly one year in office has dissatisfied some advocacy leaders who were once hopeful that the president would prioritize this reform.

During Biden's presidential campaign, he made more than 100 criminal justice reform promises, including to end mandatory minimum prison sentences, stop use of the death penalty and eliminate cash bail. However, the president hasn't fulfilled these reforms or many of his other justice campaign promises, advocates say.

In a recent Law360 poll of 13 organizations, seven organizations gave Biden a grade of "D" or "F" for his policy and legislative actions in his first year, and the majority of respondents reported being "dissatisfied" or "very dissatisfied" with his reform progress....

The 13 organizations were mixed about Biden's rhetoric on criminal justice reform. Roughly half of them gave the president a grade of "A" or "B" and the other half gave him a grade of "D" or "F." One organization gave his rhetoric a grade of "C."

But the majority of organizations gave Biden's overall progress on criminal justice reform in his first year a grade of "D" or "F." Three organizations said his overall progress was "above average" or "very good" and two groups said his progress was "average."

In the early days of Biden's administration, the president did take quick action on justice reform by issuing an order phasing out the use of privately operated prisons. Later, he also restored the U.S. Department of Justice's Office for Access to Justice, implemented restrictions on chokeholds and no-knock warrants for federal law enforcement and opened up access to re-entry services for people who were formerly incarcerated.

After much pleading from criminal justice reform groups, Biden's Justice Department reversed course on a previous decision and said in December that individuals who were released on home confinement because of the COVID-19 pandemic could stay out of prison.

Advocates, however, say that in Biden's first year, the president missed several opportunities to make key reforms including ending unjust prison sentences through the clemency process and dispelling the narrative that justice reforms will lead to more crime....

A spokesperson for the White House did not respond to a request for comment about Biden's progress on criminal justice reform.

According to Law360's poll, the majority of respondents were "hopeful" or "very hopeful" that when Biden first took office, he would prioritize criminal justice reform. However, after Biden's first year in office, only three organizations reported that they were "hopeful" or "very hopeful" the president would prioritize justice reform during the rest of his administration....

Not all advocates have lost hope though. Miriam Krinsky, a poll participant and executive director of Fair and Just Prosecution, told Law360 that she remains hopeful because of the people that Biden has appointed to be federal prosecutors, sit on the federal judicial bench and lead the DOJ. "I think [Biden] is taking seriously the need to reset the legal system, and putting people in place in criminal justice positions that are thinking differently," Krinsky said.

A few of many prior recent related posts:

January 10, 2022 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Spotlighting guideline circuit split, two Justices express "hope" US Commission will be back "in near future"

The Supreme Court issued this lengthy order list this morning which, as is typical, is mostly full of lots and lots of denials of certiorari. The Justices granted review in three cases (one involving habeas procedure) and called for the Solicitor General's views in two other cases.  But, at the very end of the 24-page order list without much of interest for sentencing fans, was a notable short statement by Justice Sotomayor, joined by Justice Barrett, respecting the denial of certiorari in Guerrant v. US, No. 21-5099. Here are highlights:

This petition implicates a split among the Courts of Appeals over the proper definition of a “controlled substance offense,” and, accordingly, over which defendants qualify as career offenders.... Defendants in [most Circuits] qualify as career offenders for federal sentencing purposes even if their only prior offenses involved substances not prohibited under federal law. As a result, they are subject to far higher terms of imprisonment for the same offenses as compared to defendants similarly situated in the Second or Ninth Circuits.

It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application of the Guidelines. Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  In March 2021, I wrote concerning an unresolved Circuit split over the proper interpretation of a Guideline. See Longoria v. United States, 592 U. S. ___. The Sentencing Commission lacked a quorum of voting members then, and it still does today.  At this point, the Sentencing Commission has not had a quorum for three full years.  As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences. I hope in the near future the Commission will be able to resume its important function in our criminal justice system.

I am intrigued and pleased to see Justice Barrett now joining Justice Sotomayor in flagging the need for a functioning US Sentencing Commission to address problematic circuit splits.  But it bears noting that plenty of circuit splits, including this one, pre-date the USSC's loss of a quorum.  Even when fully functioning, the USSC has never been able to resolve all challenging circuit conflicts, and I share Dawinder Sidhu's view that we should all "be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines." (See full article here.) 

I think it is the responsibility of the USSC and SCOTUS to help "ensure fair and uniform application of the Guidelines."  And, as Justice Sotomayor notes, we are now a full three years into a quorum-less Commission and still do not even have Commissioner nominees.  Moreover, even if Prez Biden were to nominate new Commissioners in the next few weeks (which seems unlikely) and the Senate were to confirm those nominees quickly (which seems unlikely), a new Commission could not "fix" this broken guideline until Nov 2022 at the earliest (and Nov 2023 or later is much more realistic).  But SCOTUS could, and arguably should, "solve" this issue and others with a per curiam opinion that advances consistency for the time being subject to future review by a future Commission.

Because the Supreme Court has largely abdicated its role in guideline interpretation for over three decades now, I am not surprised that it is not now trying to fill the gap created by a quorum-less Commission.  But I wish there were more than just a couple of Justices willing to do a lot more than just talk up their "hope" that another part of the federal judiciary would be able to soon help advance sentencing justice. 

January 10, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

January 9, 2022

Rounding up some notable Sunday criminal justice reads

In recent days, I have seen an assortment of interesting criminal justice pieces on an assortment of topics.  Here is a round up, with full headlines to provide a big of a preview:

From The Atlantic, "Justice Reformers Need to Update Their Priors: As a long decline in murder rates reverses, proponents of draconian law enforcement shouldn’t be allowed to monopolize the discussion."

From The Guardian, "The racist 1890 law that’s still blocking thousands of Black Americans from voting"

From The Marshall Project, "The Criminal Justice Issue Nobody Talks About: Brain Injuries; I know firsthand what it’s like to navigate the criminal justice system with a brain injury caused by domestic violence. I also live with the fact that an injury like mine can turn a victim into a perpetrator." 

From The New Republic, "Most January 6 Defendants Are Getting Light Sentences—and That’s OK; Judges have been relatively merciful in punishing the first tranche of Capitol rioters, with good reason."

From Time, "The Crisis at the D.C. Jail Began Decades Before Jan. 6 Defendants Started Raising Concerns"

From Undark, "The Public Health Case for Decarcerating America’s Prison System: The pandemic has illustrated all too clearly how unsafe conditions in prisons boomerang back on the general population."

January 9, 2022 in Recommended reading | Permalink | Comments (0)