Sentencing Law and Policy

Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?

In addition to starting with a terrible pun, the title of my post reflects my uncertainty about how much to make of the (slow-burn) uncertainty regarding application of the federal sentencing guidelines' commentary.  It is now over three years since the Supreme Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations."  The Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.    

This Kisor question is on my mind because a helpful colleague made sure I did not miss the Third Circuit's work last week in US v. Adair, No. 20-1463 (3d Cir. June 30, 2022) (available here).  The panel in Adair does a thorough job explaining how Kisor has been understood (by some circuits) to recalibrate whether and how sentencing courts must show deference to the the guidelines' commentary.  But so far a majority of circuits have not read Kisor to require changing the general tendency to treat guidelines' commentary as binding just like the actual guidelines (as the Supreme Court suggested back in Stinson v. US, 508 U.S. 36 (1993)). 

I flagged this issue in this post last year noting a big Sixth Circuit ruling, US v. Riccardi, 989 F.3d 476 (6th Cir. 2021), which held that certain commentary was an "improper expansion" of the meaning of "loss" in a fraud case.  I thought the Riccardi ruling could lead to lots of Kisor-impacted litigation because many fraud cases involve commentary that arguably expands on the guideline term "loss."  And yet, this issue recently merited only a single footnote in the USSC's recent "Loss Calculation" Primer, leading me to think this issue is not actually being litigated much. 

I know there have been at least a few cert petitions urging the Supreme Court to take up what Kisor means for the guidelines and their commentary, but perhaps the Justices do not yet see this issue roiling the lower courts enough to demand its intervention.  That said, I have noticed that a number of recent student notes on this topic:

• Jarrett Faber, Kisor v. Wilkie as a Limit on Auer Deference in the Sentencing Context, 70 Emory L. J. 905 (2021)
• John S. Acton, The Future of Judicial Deference to the Commentary of the United States Sentencing Guidelines, 45 Harv. J. of L. & Pub. Pol'y 349 (2022)
• Liam Murphy, What’s the Deference? Interpreting the U.S. Sentencing Guidelines After Kisor, 75 Vand. L. Rev. 957 (2022)

So, dear readers, it is mostly law students spending lots of time on this intricate issue or are a lot more litigants and lower courts grappling with this Kisor role than I can see?

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment.  Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

In accord with plea deal, federal judge give (below-guideline) sentence of 21 years to Derek Chauvin for civil rights violations

As reported in this post 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.  Today, as reported here by the AP, the judge decides to sentence toward the bottom of this plea bargained range:

A federal judge on Thursday sentenced Derek Chauvin to 21 years in prison for violating George Floyd’s civil rights, telling the former Minneapolis police officer that what he did was “simply wrong” and “offensive.”

U.S. District Judge Paul Magnuson sharply criticized Chauvin for his actions on May 25, 2020, even as he opted for the low end of a sentencing range called for in a plea agreement. Chauvin, who is white, pinned Floyd to the pavement outside a Minneapolis corner store for more than nine minutes as the Black man pleaded, “I can’t breathe,” and became unresponsive....

Magnuson, who earlier this year presided over the federal trial and convictions of three other officers at the scene, blamed Chauvin alone for what happened.... “You absolutely destroyed the lives of three young officers by taking command of the scene,” Magnuson said.

Chauvin’s plea agreement called for a sentence of 20 to 25 years to be served concurrent with a 22 1/2-year sentence for his state conviction of murder and manslaughter charges. Because of differences in parole eligibility in the state and federal systems, it means that Chauvin will serve slightly more time behind bars than he would have on the state sentence alone.

He would be eligible for parole after 15 years on the state sentence, but must serve almost 18 years of his federal time before he could be released.  He will also do his time in the federal system, where he may be safer and may be held under fewer restrictions than in the state system....

Chauvin attorney Eric Nelson had asked for 20 years, arguing that Chauvin was remorseful and would make that clear to the court.  But Chauvin, in brief remarks, made no direct apology or expression of remorse to Floyd’s family. Instead, he told the family that he wishes Floyd’s children “all the best in their life.”...

Prosecutor LeeAnn Bell asked Magnuson to give Chauvin the full 25 years possible in the plea deal, highlighting the “special responsibility” that he had as a police officer to care for the people in his custody....

Floyd’s brother Philonise also asked for the maximum possible sentence, telling Magnuson the Floyd family had “been given a life sentence.” He said afterward that he was upset that Chauvin didn’t get more time behind bars.

Chauvin’s mother, Carolyn Pawlenty, told Magnuson that her son didn’t go to work intending to kill someone. “Many things have been written about him that are totally wrong such as he’s a racist, which he isn’t, that he has no heart,” she said. “I believe it is God’s will for all of us to forgive.”

Chauvin’s guilty plea included an admission that he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.  It also included a count for violating the rights of a Black 14-year-old whom he restrained in an unrelated case in 2017.  John Pope, now 18, told Magnuson that Chauvin “didn’t care about the outcome” of that restraint.  “By the grace of God I lived to see another day,” Pope said. “It will continue to be a part of me for the rest of my life.”

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 

REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

Because I care so much about the topic and because so much can get quickly forgotten this time of year, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack"

In this post last month, I noted the AP's interesting accounting of all the federal sentences given to January 6 rioters so far.  Now, to mark the 1.5 year anniversary of the riot, Politico has this lengthy review of all where Jan 6 matters stand.  I recommend the full piece, and here is how it starts and some of its sentencing discussion:

Eighteen months since a pro-Trump mob ransacked the Capitol and disrupted the peaceful transition of presidential power, prosecutors are closing in on another milestone: 900 arrests.

According to the latest Justice Department figures, more than 855 members of that crowd are facing charges that range from trespassing on restricted grounds to seditious conspiracy.  Prosecutors estimate that more than 2,000 people actually entered the Capitol unlawfully that day, which means hundreds more arrests are likely in the months to come.

For a year and a half, the justice system has been slowly grinding through those cases, which have taken on increasing complexity as the House Jan. 6 select committee reveals new details about then-President Donald Trump’s own role in fomenting the events of that day.

So far, 325 defendants have pleaded guilty to crimes stemming from the breach of the Capitol, the vast majority to misdemeanor crimes.  But the most crucial tests of the Justice Department’s work are still to come....

About 200 defendants have seen their cases all the way through from arrest to sentencing, with the vast majority pleading guilty to misdemeanor crimes.  As a result, sentences have skewed toward probation and home confinement, rather than significant terms of incarceration.  That’s likely to change as some of those facing more serious charges go to trial or plead guilty themselves.

In the growing number of felony plea deals and jury convictions, defendants have received months and even years of jail time.  But sentences have varied widely, in part because of the 22 different U.S. District Court judges handling the Jan. 6 cases.  The harshest sentence so far has gone to Robert Palmer, who received a 63-month jail term after pleading guilty to multiple assaults on police officers guarding the Capitol’s lower West Terrace tunnel.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Reviewing federal criminal prosecutions of January 6 rioters one year later
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing
• Fascinating new AP accounting of all sentences given to January 6 rioters so far

Notable Seventh Circuit panel discussion of judicial challenges when revoking supervised release

As detailed in this post last month, the latest issue of the Federal Sentencing Reporter explores in depth the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  That issue came to mind when I reviewed the very interesting new Seventh Circuit decision in US v. Shaw, No. 21-1692 (7th Cir. July 6, 2022) (available here), which was brought to my attention by a kind reader.  Here is how the thoughtful and thorough majority opinion in Shaw starts and a key passage:

Terrance Shaw violated multiple conditions of his supervised release. The district court revoked his supervised release and sentenced him to two years’ imprisonment — well above the range recommended by the Sentencing Commission’s policy statements.  The court did not mention the sentencing factors from 18 U.S.C. § 3583(e), the statute that governs revocation of supervised release, as grounds for the upward variance.  The court instead explained that it was sending Shaw to prison to “help” him and give him a chance to access rehabilitative programs.  Congress has directed sentencing courts to recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).  Courts are thus precluded from imposing or lengthening a prison term to promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. 319, 325–26 (2011). Because the record suggests that the district court lengthened a term of imprisonment to rehabilitate Shaw, we vacate Shaw’s sentence and remand for further proceedings....

[W]e recognize that courts are free to discuss the availability of rehabilitative programs and even encourage defendants to use them.  But by relying on rehabilitation as the sole basis for an upward variance, the court crossed the line from permissible comments to impermissible consideration. Because Tapia applies to both the imposition of a prison sentence and the lengthening of one, the court’s reliance on rehabilitation to impose the upward variance warrants remand.

We also recognize the difficult position that district courts find themselves in under Tapia.  On one hand, 18 U.S.C. § 3583(e) requires courts to consider several purposes of sentencing — including rehabilitation — before revoking an offender’s supervision or imposing a sentence.  On the other, § 3582(a) forbids courts from relying on rehabilitation as a reason for prison time.  Combined, these provisions seemingly force courts to walk a tightrope where they must both demonstrate their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.

Judge Hamilton wrote a concurring opinion to highlight how "Tapia and the statute put district judges in a difficult position."  Here is how his interesting discussion concludes:

When I read this sentencing transcript, I see a judge who was patient, humane, wise, and fair.  Judge McDade was dealing with an unusually difficult case.  The defendant had been provided multiple opportunities to straighten out his life, including a path to an unusually well-paying job in the middle of the pandemic.  He kept wasting those opportunities. The judge’s choice to revoke Shaw’s supervised release and to send him to prison was reasonable and easily predictable.  As the lead opinion notes, Shaw had repeatedly violated important conditions of his supervised release.  Sanctions less severe than prison had not had any noticeable effect.  The judge was not required to credit Shaw’s assurances that this time he would finally follow through on therapy and other rehabilitative programs if they were imposed again as conditions of supervised release.  A more legalistic explanation of Shaw’s revocation sentence on remand should pass muster as long as the district court makes explicit reasons that were left implicit in this transcript and avoids hinting that goals of rehabilitation in prison affected the fact or length of the prison sentence.

Tapia is just one example of how federal sentencing law has become more and more complex, with more and more opportunities for reversible error.  A district judge can reduce the risk of reversible error by disengaging from the individual defendant and the difficult challenges: Just calculate the Guidelines and follow them, perhaps noting that any tricky guideline issue had no effect on the bottom line and that the § 3553(a) factors control.  As was sometimes true during the years when the Sentencing Guidelines were binding, an error-free sentencing hearing can still sound a lot like an arithmetic problem.  A remand like this one further encourages that sort of mechanical march through the Guidelines and the statutory factors.

Yet we hope for more.  We want the sentencing judge to engage with the defendant, the offense, and victims — understanding the stories behind the crime and the prospects for the future.  We want the judge to sentence the defendant as an individual with his own history and characteristics and to tailor the sentence to those individual circumstances. See generally Concepcion v. United States, 142 S. Ct. —, — (2022).

That’s what Judge McDade was doing in this difficult case, trying to reach Shaw in any way he could: drawing on his own history, drawing on concepts of faith, ethics, and sin, and explaining in almost parental terms why the sentence needed to be more severe than the time-served slap on the wrist that Shaw sought. I view this remand as compelled by § 3582(a) and Tapia, but unfortunate and otherwise unnecessary.

Still more discussion of the BOP's failings with FIRST STEP Act

At Forbes, Walter Pavlo has this new piece under the headline "Bureau Of Prisons Holding Inmates For Longer Than Law Allows." The piece provides another account of the difficulties the BOP is having in giving persons in federal prison the credits set forth in the FIRST STEP Act. Here is an excerpt:

The FSA, signed into law by President Donald Trump in December 2018, allows many prisoners to earn additional time off of their sentence, up to a year, and also earn extensive time in pre-release custody (halfway house and home confinement). Those credits, up to 15 days for every 30 days of holding a job and participating in programs/education, can be significant. It means the difference between rejoining one’s family a year or more earlier than before the FSA. However, there are reports from around the country that the BOP is not providing accurate information to prisoners about their FSA credits and some are staying in prison longer than necessary....

A declaration by BOP’s Susan Giddings in a federal civil case (Northern District of Alabama, 1:22-cv-00294, Stewart v Warden) provides a glimpse of the challenges the BOP faces in trying to implement FSA. Giddings is the Chief of the Unit Management Section of the Correctional Programs Branch at the BOP’s Central Office in Washington DC. In addition to her role overseeing Correctional Systems, she has been involved in the development and implementation of the BOP’s FSA procedures. As part of Giddings’ declaration for the Petitioner, inmate Robert Stewart, she noted that “... for reasons that are not apparent to me, Petitioner’s FSA credits were in fact incorrectly calculated.” If one person’s is wrong, many others are as well. One of the reasons might be that the BOP is currently calculating these FSAs manually....

Thousands of inmates are in the position to be freed under FSA but many will be held longer than necessary as the BOP tries to get its computer system up to speed. As one family told me about waiting for the BOP’s new sentence calculator, “it can’t come soon enough.”

Some prior related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Articulating concerns while celebrating implementation of FIRST STEP earned-time credits
• Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits
• Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits
• Another account of continuing struggles with FIRST STEP Act implementation 

Condemned Texas inmate seeks execution delay in order to donate kidney

I have blogged in the past about a few persons on death row in various states who have sought delays in their execution in order to donate an organ (examples here and here).  This new press article discusses another example now from Texas:

A Texas man on death row is seeking a delay in his upcoming execution so that he can donate one of his kidneys.  Ramiro Gonzales, 39, is scheduled to die by lethal injection on July 13 for his role in a 2001 murder, according to the Associated Press.  On Wednesday, Gonzales’ attorneys made several requests to delay his execution, including one that relies on Gonzales’ stated desire to donate a kidney.

Attorneys Thea Posel and Raoul Schonemann specifically asked Governor Greg Abbott for a 30-day reprieve so that Gonzales could be considered for the organ donation, which could potentially be used to help “someone who is in urgent need of a kidney transplant.”

The lawyers noted that Gonzales was evaluated by the University of Texas Medical Branch’s transplant team in Galveston, Texas, who reportedly determined that Gonzales was an “excellent candidate” for donation due in part to a rare blood type.  “Virtually, all that remains is the surgery to remove Ramiro’s kidney,” attorneys wrote in their request to Abbott.  “UTMB has confirmed that the procedure could be completed within a month.”

Posel and Shonemann submitted a separate request for a 180-day reprieve to the Texas Board of Pardons and Paroles for the same reason.  “For the past year and a half, our client Ramiro Gonzales has actively sought to become an organ donor prior to his scheduled execution,” Posel and Schonemann said in a statement e-mailed to Oxygen.com.  “In keeping with his deeply held religious convictions, Ramiro seeks to atone for the life he has taken by sustaining life for another person in need.”

Speaking with the Associated Press, Texas Department of Criminal Justice spokesperson Amanda Hernandez said that Gonzales had unsuccessfully made requests to donate his kidney earlier this year. Although a specific reason for the denial wasn’t provided, Posel and Schonemann said the earlier decision was related to the date of Gonzales’ execution.

Though the Texas Department of Criminal Justice does allow some inmates to donate organs and tissues, per the Associated Press, it does not allow prisoners on death row close to their execution date to making living organ donations, according to the Texas Tribune — and medical ethicists and organ donation organizations have previously refused such donations in any case. (Posthumous organ donations by those executed are also not allowed, as NBC News noted, because the contents of a lethal injection and waiting until a condemned prisoner's heart stops could harm the organs intended for transplant, even if they could be ethically collected from the point of execution.)...

In their bid to Gov. Abbott, Posel and Schonemann — who both work with the University of Texas’s Capital Punishment Clinic at the School of Law in Austin — included a letter from Maryland-based cantor and chaplain Michael Zoosman, who regularly corresponds with Gonzales. “There has been no doubt in my mind that Ramiro’s desire to be an altruistic kidney donor is not motivated by a last-minute attempt to stop or delay his execution,” said Zoosman. “I will go to my grave believing in my heart that this is something that Ramiro wants to do to help make his soul right with God.”

In their statement to Oxygen.com, Posel and Schonemann said their client was moved to donate one of his kidneys when learning that one of Zoosman’s congregants was in need of the organ. “He knows that doing this will not stop his execution,” they said. “But as he told the Cantor, he hopes to give life before his own life is taken.

Ultimately, Posel and Schonemann said Gonzales was not a match to the congregant but claims his donation could help somebody else. “The State, however, has thus far not consented to this request,” said Posel and Schonemann in their statement. “Approximately 13 people die each day waiting for a kidney transplant, and wait times for those with rare blood types can be as long as a decade. We have been inundated with emails and phone calls by people across the country who are in urgent need of a kidney transplant.”

The two lawyers also issued other requests that, if approved, would also affect Gonzales’ scheduled execution, according to the Associated Press. The first was to commute their client’s death sentence for a lesser penalty. The second was to put the brakes on the execution if Gonzales couldn’t have his spiritual advisor lay hands on him at the time of his death.

In March, the Supreme Court ruled in favor of Texas death row inmate John Henry Ramirez, whose request that his spiritual advisor perform a "laying of the hands" in the chamber during his execution had initially been denied by the state. Gonzales' request for the same thing will be subject to a two-day federal trial which is expected to begin on Tuesday.

Gonzales confessed to the rape and murder of missing 18-year-old Bridget Townsend, who had disappeared in 2001, while he was serving two life sentences for the abduction and rape of a woman in Bandera County in 2002, according to the Palestine Herald-Press.... The Texas Board of Pardons and Paroles has until July 11 to vote on Gonzales’ request. Governor Greg Abbott has yet to respond.

I find it quite interesting, but not all that surprising, to hear Gonzales’ lawyers stress "his deeply held religious convictions" in making their case for an organ donation.  As mentioned in the article, the Supreme Court's recent Ramirez ruling provided an example of the Supreme Court accommodating a religious-based request from those about to be executed.  I doubt organ donation would be viewed in quite the same way that "laying of the hands" has been by the courts, but for now this issue is before the Texas Gov and the Texas Board of Pardons and Paroles.

"Revenue Over Public Safety: How Perverse Financial Incentives Warp the Criminal Justice System"

The title of this post is the title of this big new report from the Brennan Center for Justice.  Here is how the report's introduction gets started:

Bipartisan efforts to change the criminal justice system have gained momentum around the country in recent years. Nearly all 50 states, many counties, and the federal government have sought to reduce imprisonment and mitigate its harms. A remarkable wave of legislation has shortened custodial sentences and widened eligibility for sentences served in the community.  States and localities have also invested in rehabilitation and reentry services.

Yet the impact of these efforts has been relatively modest.  While the nation’s imprisoned population has declined since peaking in 2009, incarceration levels remain extraordinarily high.  Nearly 1.2 million people are serving sentences in state and federal prisons, and 10.3 million are admitted to local jails every year.  Mass incarceration — a term now entrenched in the popular lexicon — is proving remarkably resistant to well-intentioned reforms.

One explanation can be found in the infrastructure erected to support the United States’ reliance on imprisonment as the country’s primary crime control policy.  Mass incarceration did not result simply from increased policing and harsher criminal penalties.  Economic and financial incentives established by local, state, and federal agencies also played a role.  Police, prosecutors, and corrections agencies competed for these benefits by escalating their enforcement practices.  Law enforcement came to depend on these funding sources, particularly as declining tax receipts and intergovernmental transfers left them grasping to fill budget holes.  These incentives are a persistent structural driver of punitive enforcement and mass incarceration.

The perverse financial incentives of direct federal funding programs for incarceration are relatively easy to identify.  So too are laws passed by Congress that encourage more punitive policies.  This report focuses instead on an interlocking set of economic incentives that are more deeply entrenched and difficult to unravel.  These incentive structures raise the risk that officials will chase revenue rather than pursue public safety and justice, giving law enforcement agencies a stake in perpetuating mass incarceration.  This report catalogs some of the most corrosive practices.

US Sentencing Commission produces another great updated set of "Quick Facts" publications

Long-time readers have long heard me praise the US Sentencing Commission for producing a steady stream of insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  After finalizing its fiscal year data, the USSC typically provides updated Quick Facts, and here are some of its newest ones:

Sentencing Issues

• Mandatory Minimum Penalties (June 2022)

Drugs

• Drug Trafficking (July 2022)
• Methamphetamine Trafficking (July 2022)
• Powder Cocaine Trafficking (July 2022)
• Crack Cocaine Trafficking (July 2022)
• Heroin Trafficking (July 2022)
• Marijuana Trafficking (July 2022)
• Oxycodone Trafficking (July 2022)
• Fentanyl Trafficking (July 2022)
• Fentanyl Analogue Trafficking (July 2022)

Firearms

• Section 924(c) (June 2022)
• Felon in Possession of a Firearm (June 2022)

Sex Offenses

• Sexual Abuse (June 2022)
• Child Pornography (June 2022)

Offender Groups

• Career Offenders (June 2022)

Does commitment to equal justice mean AG Garland must or must not seek the death penalty for racist Buffalo mass murderer?

The question in the title of this post is prompted by this new Washington Post article, headlined "Garland weighs racial equity as he considers death penalty in Buffalo."  Here are excerpts from a long article:

The Biden administration’s pledge to pursue racial equity in the criminal justice system is facing a crucial test: whether federal prosecutors will seek the death penalty for the self-avowed white supremacist charged with slaughtering 10 Black people in a Buffalo grocery store in May.

Some survivors and family members of those killed told Attorney General Merrick Garland during a private meeting in June that they are supportive of bringing a capital case against the 18-year-old suspect, Payton Gendron, according to people involved in the discussion.  Their stance conflicts with the long-standing position of civil rights advocates, who have generally opposed the death penalty out of concerns it is unjust and disproportionately used against racial minorities....

Garland, under pressure from civil rights groups, issued a moratorium last summer on federal executions, after the administration of President Donald Trump carried out 13 in the final six months of his presidency.  As heinous as the Buffalo killings were, Black civil rights leaders say, seeking to execute the gunman would represent a setback in their efforts to abolish capital punishment.  “The reality for us is that the system is too often infused with racial bias. That doesn’t change because someone who is White, and who perpetrated violence against Black people, is put to death,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights.

President Biden opposed the death penalty during his 2020 campaign, but he has not pushed forcefully for a blanket federal ban on executions since taking office.  His administration is under pressure to do more to confront rising white supremacy, a spike in hate crimes and a wave of gun violence.  While Garland’s moratorium does not ban prosecutors from seeking the death penalty, the Justice Department has not filed a notice to seek capital punishment under his leadership, officials said....

Federal prosecutors have charged Gendron with 26 hate crime counts.  But it is an additional gun-related charge that carries the potential penalty of death. He also faces state-level first-degree murder and hate crimes charges in New York, which does not allow state-sponsored executions....

Making matters more complex, some of the attorneys representing the families are advocates who vocally oppose the death penalty, including Ben Crump, a prominent civil rights attorney, and Terrence M. Connors, a Buffalo trial lawyer. So do some of Garland’s top deputies, including Associate Attorney General Vanita Gupta, who joined him in Buffalo....

Garland gained national acclaim in the 1990s for helping lead the Justice Department’s successful capital conviction of Oklahoma City bomber Timothy McVeigh, who was put to death in 2001.  During his confirmation hearing last year, Garland said he stands by the outcome of that case but has since developed reservations over the death penalty.

At the hearing, Sen. Tom Cotton (R-Ark.) cited the case of Dylann Roof — a White man sentenced to death for fatally shooting nine Black parishioners at a church in Charleston, S.C., in 2015 — and asked whether Garland would pursue capital punishment in a similar case. Garland responded that it would depend on the Biden administration’s policy.

The Justice Department has continued to back Roof’s death sentence, which was upheld by a federal appellate court last summer.  The department also is seeking the death penalty for Robert Bowers, a White man accused of killing 11 people and wounding six in an antisemitic attack at the Tree of Life synagogue in Pittsburgh in 2018....

In opposing the death penalty, some opponents cite cases in which convicts on death row are exonerated in light of new evidence. But legal experts said the Buffalo case appears to lacks ambiguity: The suspected gunman allegedly wrote a 180-page screed denouncing Black people, shared plans for the attack on social media and live-streamed some of the shooting.

“Congress passed the law allowing the federal death penalty for the most heinous of crimes. If the Buffalo massacre doesn’t qualify, then it’s hard to see what would,” Cotton said in a statement. “Merrick Garland and President Biden ought to put aside their personal feelings, enforce the law, and focus on securing justice for the victims of this horrific crime.”

Garland has not been completely clear about his intent in pausing executions, said Nathan S. Williams, a former assistant U.S. attorney who helped prosecute Roof.  Though Garland cited technical issues concerning lethal injection in his memo announcing the moratorium, he also referenced fundamental unease about the death penalty’s “disparate impact on people of color.”  Garland’s moratorium “does not resolve what was posited in that memo: ‘Is the death penalty fundamentally unfair in its application?’ If you believe that, you would not pursue it” in Gendron’s case, Williams said.

Especially because the facts in Gendron's case are relatively similar to those that led to Roof being sent to federal death row, I can see a basis to say a commitment to equal justice demands pursuing the death penalty for Gendron. But, if one sincerely believes the entire system is fundamentally inequitable, I can also see a basis for saying a commitment to equal justice demands never seeking the death penalty. It will be interesting to see what AG Garland decides.

Prior related post:

• Will feds consider a capital prosecution of the racist Buffalo mass murderer? 

New podcast for all sentencing fans (and especially defense attorneys)

I am pleased to be able to post about a great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, who I have had the pleasure to work with on a few matters.  Doug Passon created "Set for Sentencing" earlier this year and already has a lot of terrific content posted at this archive. Here are titles/links of episodes to date:

Senators Sell Sentencing Snake Oil at KBJ Confirmation Hearing

Keep Fighting the Good Fight on Compassionate Release!

Disrupting the Dehumanizing Sentencing Process

David Rudolf: American Injustice, The Staircase & Defending Empathy

Telling the Story of Prison at Sentencing

Narrative is Everything at Sentencing!

YouTube Bonus Episode: Sedition Edition!

Understanding Autism at Sentencing

The Devil You Know: The “Funny Math” of the Guidelines, Proposed Fixes, and Lessons Learned From Capital Defense

As these podcast titles suggest, the discussions of sentencing in these episodes tend to come from a defense/defense attorney perspective.  But Doug Passon, whose interests and expertise extend far beyond legal doctrine, brings on an array of guests who are not all lawyers but all have lots of interesting insights for those who are.  I had the honor and the pleasure of taping one of these "Set for Sentencing" episodes a number of weeks ago, and that episode was just posted here (the "Devil You Know" segment).

Another account of continuing struggles with FIRST STEP Act implementation

NBC News has this lengthy new piece under the headline "Thousands of federal inmates still await early release under Trump-era First Step Act." Here are excerpts:

Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals.  No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM.  “Here we are, four years later, and it’s maddening.”

The Justice Department published a final rule in January that implements an integral feature of the law in which inmates can earn so-called time credits, which are obtained through participation in prison and work programs and calculated as part of the process of getting out early.  The problem, advocates say: They are identifying inmates whose time credits aren’t getting applied, and in some cases, the inmates aren’t getting released as early as they should be....

Data provided by the Bureau of Prisons shows that as of June 18, more than 8,600 inmates have had their sentences recalculated and are slated for release with the application of their time credits.  But it’s unclear how many qualified inmates are entitled to have been released early but remain incarcerated. In a response, bureau officials said, “We have no data which suggests inmates had their release dates delayed.”

But with the bureau’s own data identifying about 66,600 inmates who are eligible to earn time credits, some industry experts disagree. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” said Walter Pavlo, president of the consulting firm Prisonology LLC....

Pavlo said the Bureau of Prisons never had the mechanisms in place to adequately track inmates’ participation and he is concerned the agency “is not facilitating the timely calculation and application of time credits in accordance with the final rule, forcing inmates to serve custodial terms longer than required.”  In the cases he’s reviewed, he said he has seen inmates in prison from six months up to a year who could have had either an earlier release or time in pre-release custody.  “The biggest problem is nobody on the front lines seems to understand the new rule,” Pavlo said. “There needs to be a task force on this now.”

Some prior related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Articulating concerns while celebrating implementation of FIRST STEP earned-time credits
• Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits
• Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits

"What the end of Roe v. Wade will mean for people on probation and parole"

The title of this post is the title of this notable briefing authored by Wanda Bertram and Wendy Sawyer of the Prison Policy Initiative giving attention to how the Supreme Court's Dobbs's ruling will impact the large number of women on probation or parole. Here is how it gets started:

With several states preparing to criminalize abortion now that Roe v. Wade is over, and some states talking about criminalizing traveling out of state to get an abortion, it’s worth remembering that for many people on probation and parole, traveling out of state for abortion care is already next to impossible.  On any given day in the U.S., 666,413 women are on probation (a community-based alternative to incarceration) or parole (the part of a prison sentence that someone serves in the community).  In many jurisdictions — for instance, Louisiana, Tennessee, Kentucky, Idaho, Texas, and the federal system, as well as some juvenile probation systems — it’s common for people on probation and parole to face restrictions on where they can travel, whether they can move to another county or state, and with whom they can “associate” (including, potentially, people who assist in coordinating abortion access, where such help is criminalized).  All of these restrictions will make it harder for people under supervision to get abortion care.

In the last few days, many news outlets have reported on how people in prison can be blocked from seeking an abortion, especially in states where abortion is already illegal.  (Ironically, as we’ve discussed before, prisons deny people quality pregnancy care even as they deny abortion access.)  The end of Roe v. Wade will create new barriers to abortion care for incarcerated people, since it will likely trigger

But an even greater number of people on probation and parole stand to be affected: About 231,000 women are in prison or jail on any given day, but several times as many women are on probation and parole, the result of gendered differences in offense types: women are more likely than men to be serving sentences for lower-level property and drug crimes

In the thirteen states with abortion ban “trigger laws” on the way, more than 200,000 women are under probation and parole supervision, which will make it difficult or impossible for many of them to travel out of state for an abortion, or potentially even talk to people coordinating abortion care, given the typical restrictions of probation and parole.

A few prior related posts:

• What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 
• Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized 
• SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues
• A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal
• Reviewing and reflecting on what criminalization of abortion could and will mean 

Will Oklahoma carry out over two dozen executions over the next couple years?

The question in the title of this post is prompted by this new Washington Post article headlined "Oklahoma plans to execute an inmate nearly every month until 2025." Here are some of the details:

Oklahoma plans to execute 25 prisoners in the next 29 months after ending a moratorium spurred by botched lethal injections and legal battles over how it kills death row inmates.

The Oklahoma Court of Criminal Appeals on Friday set the execution dates for six prisoners in response to a request by Oklahoma Attorney General John O’Connor (R) in mid-June. The court later added dates for an additional 19 prisoners for a total representing more than half of the state’s 44-person death row population.

After a federal judge in Oklahoma ruled in early June that the state’s three-drug lethal-injection protocol was constitutional, O’Connor made his request, saying in filings that the prisoners had exhausted their criminal appeals. O’Connor argued for imminent execution dates as a matter of justice for the family members of those who were killed. In a statement, O’Connor noted that the earliest kill by a prisoner on Oklahoma’s death row was committed in 1993.

The first execution is scheduled for Aug. 25, with subsequent executions scheduled for about once every four weeks through 2024. In Oklahoma, prisoners are automatically granted a clemency hearing within 21 days of their scheduled execution, at which point the state’s pardon and parole board can recommend the governor grant a prisoner a reprieve from death row.

The scheduled flurry of executions is expected to draw Oklahoma back into familiar territory: the center of the nation’s death penalty debate....

Several of the Oklahoma prisoners scheduled for execution have strong innocence claims, histories of intellectual disability that should disqualify them for the death penalty or whose cases have claims of racial bias, their lawyers say.

Among them is Richard Glossip, whose 2015 case against the state’s lethal injection protocol went before the U.S. Supreme Court, which ruled in the state’s favor. His assertion of innocence has not only made him one of the more high-profile death row cases in the United States but has also won him support from Republican lawmakers in the state who object to his execution, scheduled for September.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates