Sentencing Law and Policy

SCOTUS takes up reach of McGirt's limit on state prosecution in "Indian country"

The Supreme Court via this order last night granted cert in one case, Oklahoma v. Castro-Huerta, a criminal case concerning the reach of a notable Court ruling from a few terms ago.  This SCOTUSblog post provides the details and context, and here is an excerpt:

Less than two years ago, the Supreme Court ruled in McGirt v. Oklahoma by a vote of 5-4 that a large portion of eastern Oklahoma, which was reserved for the Creek Nation in the 19th century, remains a reservation for purposes of a federal law that gives the federal government sole power to try certain major crimes committed by “any Indian” in “Indian country.” On Friday, the justices — with Justice Amy Coney Barrett having replaced the late Justice Ruth Bader Ginsburg, who was in the McGirt majority — agreed to consider how broadly McGirt applies, but they declined to reconsider the decision itself, which the state describes as having a “more immediate and destabilizing effect on life in an American State” than any of the court’s other recent decisions.

The justices granted review in the case of Victor Manuel Castro-Huerta, who was convicted of neglecting his five-year-old stepdaughter.  Although Castro-Huerta is not a Native American, his stepdaughter is a member of the Eastern Band of Cherokee Indians, and the Oklahoma Court of Criminal Appeals vacated his conviction because the crime occurred in Indian country.  The decision rested on the court’s conclusion that McGirt applies not only to major crimes committed by Native Americans but also to crimes committed by others in Indian country.

Oklahoma filed more than 30 separate petitions asking the justices to overrule McGirt.  It told the justices that the effects of the decision have been “calamitous and are worsening by the day.”  Thousands of crime victims are now seeking justice from federal and tribal prosecutors, the state wrote, overwhelming those offices and federal district courts and leaving many crimes “uninvestigated and unprosecuted.”...

In a brief order on Friday afternoon, the justices agreed to take up only the first question presented by the state’s petition, relating to the application of McGirt to bar state prosecutions of non-Native defendants who commit crimes against Native Americans in “Indian country.”  The court set the case for argument in its April 2022 argument session, with a decision to follow by summer.

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

Eleventh Circuit panel decides law enforcement violates First Amendment by placing Halloween warning signs on registered sex offenders' lawns

A couple of days ago, a unanimous Eleventh Circuit panel issued an interesting and notable ruling in McClendon v. Long, No. 21-10092 (11th Cir.  Jan. 19, 2022) (available here).  Here is how the court's opinion gets started:

In October 2018, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Before Halloween 2019, three registered sex offenders living in Butts County sued, seeking to enjoin the Sheriff from placing the signs again. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff.

After review and with the benefit of oral argument, we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.  Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion.

For many years, I have seen reports about (and have blogged a bit about) all sorts of "special" formal and informal rules applied to registered sex offenders by many localities around Halloween. Some of these rules have been challenged in various courts and a few have been enjoined.  But I cannot recall seeing any other federal circuit opinions on this recurring issue, and I suspect this ruling will be widely cited in future litigation over these kinds of issues.

January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing

This morning I saw two interesting, though not especially surprising, reviews of some of federal criminal justice realities being put in the spotlight by the many prosecutions of January 6 rioters.  Here are the headlines, links and an excerpt:

From Zoe Tillman at BuzzFeed News, "Alleged Capitol Rioters Are Getting In Trouble For Guns And Other Violations After Going Home: A common theme popping up in violations among those on pretrial release has come from defendants who are reluctant to give up access to firearms."

[Joshua] Pruitt is one of 11 people charged in connection with the attack on the US Capitol who were ordered into custody after initially being released; eight of those cases involved defendants who violated conditions of their pretrial release.  Prosecutors have a pending request to put another defendant behind bars, and BuzzFeed News identified at least 16 cases where judges tightened restrictions or issued warnings after finding defendants failed to be in full compliance with the letter, or spirit, of their release conditions.

The vast majority of people charged in the Jan. 6 investigation have been allowed to go home while their cases are pending; there are more than 550 defendants with active cases on pretrial release. Most have stayed out of trouble. The small but steady trickle of problems that have cropped up speak to some of the broader challenges judges have faced in deciding when it’s appropriate to send someone back into the community who is accused of being part of the insurrection but isn’t charged with a specific act of violence or a more serious crime.

From Roger Parloff, "Are Judges Showing Their Political Colors in the Jan. 6 Criminal Cases?"

Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.

Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants? The evidence is mixed.  On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.  At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases....

Here’s what the Post did.  It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event.  Then it compared those sentences to the terms the prosecutors had sought.

As an initial matter, the Post found that 49 defendants — two-thirds — received lighter sentences than prosecutors had recommended....

Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.

Upon swiveling the tables — homing in on which judges imposed sentences that were harsher than the prosecutors requested — a mirror-image pattern emerged.  Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.

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
• Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots 
• Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories 
• Reviewing federal criminal prosecutions of January 6 rioters one year later

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. US, No. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

Pope Francis speaking out again on behalf of "our brothers and our sisters who are in prison"

This new AP article, headlined "Pope on prisons: No inmate should ever be deprived of hope," reports on some of the latest comments from Pope Francis about prisons and prisoners.  Here are the highlights along with some Italian backstory that may account for the pope's latest remarks:

Pope Francis issued a plea on behalf of prison inmates Wednesday, saying they should never be deprived of hope and always be given the opportunity to redeem themselves.

In remarks at his weekly public audience at the Vatican, Francis told the faithful that “we risk being imprisoned in a justice that doesn’t allow one to easily get back up again and confuses redemption with punishment.”

“For this, I want to recall today in a particular way our brothers and our sisters who are in prison,” the pontiff said. “It’s right that those who have made a mistake pay for their mistake, but it’s even more right that those who have done wrong should be able to redeem oneself from their mistake. There can’t be sentences without windows of hope.’’

Francis didn’t cite the prison policies or justice systems of any particular countries as problematic. Catholic teaching holds that the death penalty has no justification in modern society. During his papacy, Francis has made attention to the needs of communities on society’s margins, including prison populations, a priority.

“Let’s think of our incarcerated brothers and sisters, and let’s think about the tenderness of God for them and pray for them so that they may find in that window of hope a way out toward a better life,” Francis said in concluding his remarks Wednesday.

Italy’s justice minister, while briefing lawmakers in Parliament on criminal justice reform Wednesday, decried overcrowding in the country’s prisons, describing it as the most serious of all the problems plaguing the penal system.  Justice Minister Marta Cartabia said Italy’s prisons were 14% overcrowded. “It’s a condition that aggravates the relationships among inmates and which makes the work of prison personnel, often victims of aggression, even more difficult,” she said. “Overcrowding means greater difficulty in guaranteeing security and greater difficulty in proposing activities that facilitate paths to rehabilitation.”

Cartabia said reforms were under way to allow for sentences that provide alternatives to prison. But she noted that 69,000 persons are already serving their sentences outside prison walls, compared to some 54,000 inmates in Italy’s criminal justice system.

Notably, the United States has about 5 times the population of Italy, but has about 25 times as many prisoners.  According to this site, the US violent crime rate and murder rate is also five times the rate in Italy.

A few prior related posts about Pope Francis'  "sentencing advocacy":

• Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world 
• Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities" 
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty 
• Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

Guest posts on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

I hope readers recall the series of guest posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings."  Not too long ago, Alison wrote to me to highlight a big new Seventh Circuit ruling on the Bail Reform Act that related to another focus of her work.  I suggested that she do another guest post series on the ruling because this was a legal space I know little about.  She has prepared two long posts on the topic, and here is the first:

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GUEST BLOG POSTS RE WILKS AND THE PRESUMPTION OF DETENTION by ALISON SIEGLER

PART I

This is the first of two guest posts discussing a groundbreaking opinion that addresses the Bail Reform Act’s “presumption of detention.”

The BRA’s presumption of detention applies to “nearly half of all federal criminal cases and to 93 percent of all drug cases.” Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); 18 U.S.C. § 3142(e)(2)–(3). The most common types of cases in which the presumption applies are drug cases, § 924(c) gun cases, and minor victim cases. A study from the Administrative Office of the United States Courts finds that the “presumption of detention . . . is driving high federal detention rates,” and that in practice, the presumption “has become an almost de facto detention order.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 FED. PROBATION 52, 56, 61 (2017).  The same study found that “the presumption increases the detention rate without advancing community safety. Rather than jailing only the worst of the worst, the presumption over-incarcerates the lowest-risk offenders in the system.” Siegler & Zunkel, supra, at 50 (citing Austin, supra, at 57). “Now, with the presumption as a driving force, federal pretrial detention rates have skyrocketed, with three in four people jailed before trial — a 75 percent detention rate that falls disproportionately on people of color. This is mass incarceration in action.” Alison Siegler & Kate Harris, How Did the Worst of the Worst Become 3 Out of 4?, N.Y. TIMES (Feb. 24, 2021).  Courts often assume that the presumption ties their hands, and defense attorneys sometimes waive the right to seek release in presumption cases because challenging pretrial detention feels futile.

An important recent Seventh Circuit opinion reminds us that is not how the presumption is supposed to operate as a matter of law. United States v. Wilks, 15 F.4th 842, 844 (7th Cir. 2021) (reversing a district court’s revocation of pretrial release because “the judge did not hew to the statutory framework in making the revocation decision”). Wilks illuminates the operation of the presumption in a way that enables lawyers to push back on the presumption’s worst manifestations.

Wilks clarifies numerous key aspects of the limits of the § 3142(e) presumption of detention.

First, even when a presumption of detention is triggered, “the burden of persuasion always rests with the government.” Wilks, 15 F.4th at 846–47.

• Even in a presumption case, the defense never bears the ultimate burden of persuasion or proof. That is, the defense never has to persuade the judge that there exist conditions of release that will reasonably assure his or her appearance and the safety of the community.  See 50 GEO. L.J. ANN. REV. CRIM. PROC. 404 (2021) (“The presumptions of detention shift the burden of production to the defendant, but the government retains the burden of persuasion.”).
• Rather, the burden of persuading the judge that no conditions of release exist that will reasonably assure the accused’s appearance and the safety of the community continues to rest at all times with the government, despite the presence of the presumption. See Wilks, 15 F.4th at 846–47; see also Dominguez, 783 F.2d at 707 (“[T]he burden of persuasion remains with the government” at all times and never shifts to the defense); Jessup, 757 F.2d at 381 (“[T]he burden of persuasion does not shift.”); Alatishe, 768 F.2d at 254 (“[I]t [i]s not the responsibility of the [defendant] to carry the Government’s burden of proof or persuasion.”).

Second, the presumption is intended to be easy to rebut. See 18 U.S.C. § 3142(e)(3) (“Subject to rebuttal by the person . . .”); see also Wilks, 15 F.4th at 846 (“A defendant charged with a serious drug crime . . . is subject to a rebuttable presumption.”).

• Rebuttal, in theory, should be exceedingly easy, as the presumption “places a light burden of production on the defendant” to rebut the presumption. Wilks, 15 F.4th at 846 (emphasis added); see also United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (“The burden of production is not a heavy one to meet.”); United States v. Jessup, 757 F.2d 378, 380–84 (1st Cir. 1985) (holding that to meet the burden of production required for rebuttal, the defendant need only produce “some evidence” under § 3142(g)); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (same); United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (same); 50 GEO. L.J. ANN. REV. CRIM. PROC., supra, at 404 (“Once defendants ‘[come] forward with some evidence that [they] will not flee or endanger the community if released,’ the presumption of flight risk and dangerousness is rebutted.” (quoting Dominguez, 983 F.3d at 707) (bracketed alteration in original)).
• The defense rebuts the presumption and meets its burden of production by presenting “some evidence” related to the § 3142(g) factors, including any “evidence of economic and social stability.” Dominguez, 783 F.2d at 707; see also Siegler & Zunkel, supra, at 52 & n.110 (collecting cases). “Once this burden of production is met, the presumption is ‘rebutted.’” Dominguez, 783 F.2d at 707.
• Any evidence under § 3142(g) rebuts the presumption! If a judge finds otherwise, that violates the statute and caselaw.
  • Examples in Dominguez of the kind of evidence that rebuts the presumption include “evidence of their marital, family and employment status, ties to and role in the community, clean criminal record and other types of evidence encompassed in § 3142(g)(3).” Dominguez, 783 F.2d at 707; see also Jessup, 757 F.2d at 384.
• The defense does not have to “‘rebut’ the government’s showing of probable cause to believe that [the accused] is guilty of the crimes charged,” nor do they have to “demonstrate that [the type of crime charged] is not dangerous to the community.” Dominguez, 783 F.2d at 706.
  • For example, someone charged in a drug case or a § 924(c) gun case does not have to prove that distributing drugs or possessing a firearm is not dangerous.

Third, “an unrebutted presumption is not, by itself, an adequate reason to order detention. Rather, the presumption is considered together with the factors listed in § 3142(g).” Wilks, 15 F.4th at 847 (citation omitted).

• This is a hugely important statement of the law.  Very few judges and practitioners understand this.  Even if the defense does not carry its light burden of production by not coming forward with some evidence under § 3142(g) that rebuts the presumption, that lack of rebuttal does not, standing alone, authorize detention in a presumption case.  The government continues to bear the “burden to justify detention” by establishing that there are no conditions of release that will reasonably assure the accused’s appearance and the safety of the community. Id.  And the judge must still analyze all of the factors listed in § 3142(g) in determining whether the government has met that burden.
• Whether or not the defense rebuts the presumption, the ultimate burden of persuasion and proof always rests with the government to justify detention and to establish that there are no conditions short of detention that will reasonably assure the accused’s appearance in court and the safety of the community.  See GEO L.J., supra, at 404 (“Even when a presumption of detention applies, the government continues to bear the ultimate burden of proving that no conditions of release will reasonably assure the defendant’s appearance and the safety of the community.”). If the government does not carry that burden, the law requires the judge to release the accused on bond.
  • Even if the presumption is unrebutted, “[i]f the government does not carry its burden to justify detention, the judge must order the defendant’s release pending trial subject to the least restrictive combination of conditions that will reasonably assure his appearance and the safety of the community. 18 U.S.C. § 3142(c)(1)(B).” Id.
  • See also Chimurenga, 760 F.2d at 405, 403 (holding that even in a presumption case, “the government continue[s] to have the burden to prove by clear and convincing evidence that [the defendant is] dangerous” and that there are no conditions that will reasonably assure their appearance and the safety of the community despite all of the evidence of social stability the defendant presents); United States v. Munchel, 991 F.3d 1273, 1289 (D.C. Cir. 2021) (Katsas, J., concurring in part) (clear and convincing evidence is “a heightened standard of proof under which the fact finder must ‘give the benefit of the doubt to the defendant.’” (citation omitted)).
• In fact, if the judge shifts the burden of persuasion to the accused, that arguably violates due process because the constitutionality of the presumption depends in part on the fact that the defense does not bear the burden of proving that the accused is not a danger or a flight risk. See, e.g., Jessup, 757 F.2d at 386 (“Given [inter alia] . . . the fact that the presumption does not shift the burden of persuasion, . . . the presumption’s restrictions on the defendant’s liberty are constitutionally permissible.”). The canon of constitutional avoidance thus strongly militates in favor of the Wilks court’s interpretation of this meaning of the presumption.

Fourth, once the presumption is rebutted, it carries a lot less weight.

• The rebutted presumption remains in consideration but is just one factor among many. “While the rebutted presumption does not disappear, a judge must weigh it against all of the mitigating evidence that the defense presents, and assign it no more weight than any other § 3142 factor.” Siegler & Zunkel, supra, at 52 (citing Jessup, 757 F.2d at 384).
• When the defense rebuts the presumption, it has demonstrated that the general purpose animating the presumption is inapplicable in that particular case. So even if drug offenses in general raise a presumption of dangerousness, someone who has rebutted the presumption has introduced evidence that his or her own personal risk of continuing to sell drugs is lower.

SCOTUS to hear argument over terms of crack offense resentencing under FIRST STEP Act

The Supreme Court will be hearing oral argument on Wednesday morning in Concepcion v. US, No. 20-1650, which presents the following sentencing issue as phrased by the petitioner in this brief:

Whether, when deciding if it should “impose a reduced sentence” on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

The Government articulates the issues somewhat differently in its brief:

Whether a district court is required to consider all legal and factual developments occurring after an offender’s original sentencing — whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 — in connection with a motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

I was happy to be able to join this law professors' amicus brief which stresses the centrality of the 3553(a) factors at federal sentencing, which calls for analysis of all relevant considerations at initial sentencings and at any resentencings.

Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

As noted in this prior post, last week the Department of Justice announced its new rule for "implementing the Time Credits program required by the First Step Act."  Because this rule is to be applied retroactively and enables perhaps half of all current (and future) federal prisons to earn early release, it is a very big deal while also having lots and lots complicated implementation intricacies.  Helpfully, FAMM has this helpful new four-page document titled "First Step Act Earned Time Credits Rule Explainer," which starts this way:

On January 13, 2022, the BOP published a rule implementing the Earned Time Credits that were included in the First Step Act. There are a lot of questions about the rule, many of which this Explainer attempts to answer.  There is still much to learn, however, and we will continue to update this Explainer as we learn more.  Please understand that we cannot answer your questions about whether you or your loved one is eligible for credits toward pre-release custody or supervised release, among other things. 

Here are some of the essentials from the document provide a window into just some of the particulars:

Who is eligible to apply FSA Time Credits toward pre-release custody or supervised release?

• People in BOP custody (including those in a halfway house or on home confinement);
• who are serving a federal sentence;
• who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA); 
• who have been assessed as “minimum” or “low” risk for at least one assessment or who can obtain warden approval; and
• who have earned credits equal to the remainder of their prison term.

Who is barred from either earning FSA Time Credits or applying those credits toward pre-release custody?

• People serving sentences for convictions under state or District of Columbia law, or who have a final order of removal under immigration law, cannot apply credit toward pre-release custody or supervised release.
• People serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn credit. In limited circumstances, certain prior convictions may also prohibit one from earning credit....

What do earned FSA Time Credits do?

• Eligible people who have earned FSA Time Credits may have them applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence).
• Transfer to supervised release is limited to one year, but people may be transferred to pre-release custody earlier

Prior related post:

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

How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?

On MLK day, I have a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King, which always delivers and always has its own unique power each and every listen.  In recent years, I have also used this day to explore Stanford University's awesome collection of MLK Papers; in posts linked below, I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But this recent news item from Wyoming has me today focused on a specific policy ask for advancing freedom and racial justice:

U.S. Sen. Cynthia Lummis, R-Wyo., became the seventh Republican co-sponsor of the EQUAL Act on Friday, which would fully and finally eliminate the federal sentencing disparity between crack and powder cocaine.

The two substances are virtually identical and equally dangerous, and yet crack carries a penalty that is 18 times that of powder cocaine, according to a news release. The bill passed in the House of Representatives by a margin of 361-66, including 143 Republicans.

Lummis joined Republican Sens. Rob Portman, R-Ohio; Rand Paul, R-Ky.; Thom Tillis, R-N.C.; Lindsey Graham, R-S.C.; Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, as co-sponsors. Advocates from across the political spectrum said the addition of Lummis is a clear indication that the EQUAL Act has the momentum needed to pass the Senate....

The EQUAL Act has support from groups across the political spectrum, including the Major Cities Chiefs Association, National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Faith and Freedom Coalition, ALEC Action, R Street Institute, FreedomWorks and Taxpayers Protection Alliance.

With seven notable and diverse GOP senators serving now serving as co-sponsors for the EQUAL Act, I have to believe this bill could easily overcome any filibuster efforts and secure passage on the floor of the Senate (likely by the 5 to 1 margin that it secured passage in the House).  So why is this not getting done ASAP?  To its credit, the Biden Administration has testified in support of the EQUAL Act in the US Senate, but I have not heard Prez Biden himself (or VP Harris) lean into this issue at all.  (Notably, if they want to focus on voting rights as a focal point for civil rights advocacy, they might also really advance the MLK legacy by taking on felony disenfranchisement.  Moreover, they should try to get bipartisan bills like the EQUAL Act passed into law so that people who care about criminal justice reform can better understand why they should bother to vote at all.)  

In part because US Sentencing Commission data reveal that "only" 1,217 persons were sentenced on crack trafficking offenses in FY 2020, which accounts for "only" 7.5% of all offenders sentenced for drug trafficking offenses, the import and impact of the EQUAL Act would not be as huge now as it might have been in years past.  (In FY 2009, just before the Fair Sentencing Act of 2010 reduced the crack/powder disparity from 100-1 to 18-1, there were over 5,000 persons sentenced on crack offenses; indeed, more than 5,000 persons were sentenced each year on federal crack offenses through most of the 2000s.)  Still, the USSC 2020 data show that over 93% of those sentenced for federal crack offenses are persons of color (with 77% black), so that there is still a profound inequitable impact from our federal sentencing scheme that still unfairly treats crack offenses as much more serious than functionally comparable powder offenses.

Links to some prior MLK Day posts:

• Should criminal justice reform be the new civil rights movement?
• Honoring MLK by asking hard questions
• Reflecting on race and criminal justice realities to honor MLK's legacy
• Another reminder of race and criminal justice realities to honor MLK's legacy
• NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
• Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms 
• Some new quotes at the end of the latest MLK day
• What might Martin Luther King seek as the next step in federal criminal justice reform? 
• Remembering and honoring the (always timely) poignancy of the great words of Dr. Martin Luther King 

A few related posts on the EQUAL Act:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 

Latest issue of Dædalus explores "Reimagining Justice: The Challenges of Violence & Punitive Excess"

The Winter 2022 issue of the journal Dædalus has a series of essay on the topic of "Reimagining Justice: The Challenges of Violence & Punitive Excess."  Here is the issue's introduction from this issue page and a listing of the article titles and authors:

America has the highest incarceration rate in the world. Criminal justice policies of punitive excess and unequal protection under the law have sustained racial exclusion and added to the harsh conditions of poverty.  The Winter 2022 issue demands that we imagine a different kind of public safety that relies not on police and prisons, but on a rich community life that has eliminated racism and poverty.  Many of the solutions will lie beyond the boundaries of the criminal justice system and public policy, yet much of the work is already being done in communities around the country. And these efforts share, as the essays in this issue suggest, a common commitment to the values of healing, reconciliation, and human dignity.

Violence, Criminalization & Punitive Excess by Bruce Western and Sukyi McMahon

The Story of Violence in America by Kellie Carter Jackson

The Problem of State Violence by Paul Butler

Public Health Approaches to Reducing Community Gun Violence by Daniel W. Webster

Seeing Guns to See Urban Violence: Racial Inequality & Neighborhood Context by David M. Hureau

Developmental & Ecological Perspective on the Intergenerational Transmission of Trauma & Violence by Micere Keels

The Effects of Violence on Communities: The Violence Matrix as a Tool for Advancing More Just Policies by Beth E. Richie

Faces of the Aftermath of Visible & Invisible Violence & Loss: Radical Resiliency of Justice & Healing by Barbara L. Jones

The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America by Khalil Gibran Muhammad

Criminal Law & Migration Control: Recent History & Future Possibilities by Jennifer M. Chacón

Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts by Nicole Gonzalez Van Cleve

Recognition, Repair & the Reconstruction of “Square One” by Geoff K. Ward

Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity by Jonathan Simon

All of these articles (along with abstracts) can be accessed at this webpage.

"The Paid Jailer: How Sheriff Campaign Dollars Shape Mass Incarceration"

The title of this post is the title of this new report published by Common Cause and Communities for Sheriff Accountability. Here is part of the report's introduction:

In the criminal legal system, the patterns are clear and striking.  Business interests can establish a relationship with sheriffs by sending even small contributions.  Construction companies provide backing to sheriffs who proceed to build new jails.  Health care companies fund campaigns, and then receive multimillion-dollar contracts, with no criteria for results or the health of incarcerated people.  The list of donors with direct conflicts is striking and includes employed deputies, bail bonds companies, weapons dealers, and gun ranges.  It is a system incentivized to jail more people and cast a blind eye to any harm suffered by those within the jails.

Our research, conducted in 11 states, in less than 3 percent of sheriffs offices, documents approximately 13,000 apparent conflicts of interest, primarily between 2010 and 2021.  We have identified upward of $6 million, approximately 40% of all examined contributions, that create potential conflicts of interest.  We have selected these sheriffs using a combination of public interest, and random selection, so these sheriffs are more likely to represent a pattern than exceptional cases....

Sheriffs are politicians who make major decisions about health and safety for millions of Americans — and they shouldn’t be up for sale to the highest bidder.  Alongside carceral reforms and community investment, small-dollar democracy programs can amplify the voices of those most impacted by overincarceration and can help to reenvision a justice system that works for everyone and not just a wealthy few.

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"