Sentencing Law and Policy

Lots of notable new briefings and other interesting items from the Prison Policy Initiative

The start of a new semester and other matters have left me behind on reading and blogging on various fronts, particularly with respect to a number of notable new items from the Prison Policy Initiative.  In an effort to catch up, here is a reprinting of links to notable recent PPI works:

• The state prison experience: Too much drudgery, not enough opportunity: An underutilized government dataset goes deep into daily life in state prisons - including work assignments, programming, and discipline - revealing lost opportunities for rehabilitation, education, and hope.

• Our first chance to end prison gerrymandering in the 2030 Census: The 2030 Census should count incarcerated people at home; tell them to start that change now.

• New data reveals where people in California prisons come from: Report shows every community in California is harmed by mass incarceration

• Since you asked: How many people are released from each state’s prisons and jails every year?: The number of people going through reentry each year vastly exceeds the resources available to them in most communities.

• Military base closures: A model for getting past the parochial politics of closing prisons: The BRAC process, which is used to close military bases, has successfully avoided political minefields. Could a similar process be created to close prisons?

• Please Mr. Postman: It’s time to create a special postal mail rate for incarcerated people: Congress has created reduced postage rates for special groups in the past… it’s time for it to create one for incarcerated people and their families.

"The Miseducation of Carceral Reform"

The title of this post is the title of this new article now available via SSRN authored by Fanna Gamal. Here is its abstract:

Public education looms large in criminal law reform.  As states debate what to invest in — other than criminal law enforcement — to provide safety and security to the public, public schools have emerged as a popular answer.  Today, legislatures move money from prisons to public education, arguing that this reinvestment can address the root causes of mass incarceration.  This Article analyzes this reinvestment trend from the perspective of public schools.  It takes seriously the possibility that diverting money from incarceration to public education can help address the root causes of mass incarceration and it argues that realizing this possibility requires a more expansive approach to reinvestment than is demonstrated in current legal reforms.  This expansive approach to reinvestment situates the provision of education within a constellation of interconnected needs, increases power over diverted funds for those who have historically been excluded from educational decisions, and confronts the underlying race, class, and gender resentments used to justify asymmetrical spending on incarceration and public education.  By analyzing reinvestment approaches to carceral reform from the perspective of public schools, this Article underscores the contested nature of the reinvestment movement.  It maps both the restrictive and transformative directions carceral reinvestment can take, and it points to several promising efforts that make use of a more transformative approach to reconfigure the relationship between public welfare and the carceral state.

First Circuit panel reiterates district courts' "broad discretion" and "holistic review" when resolving compassionate release motions

Today seems to be my day for catching up with circuit rulings regarding federal compassionate release decision-making.  My prior post today here about the Second Circuit's panel rulings limiting the consideration of certain arguments prompted a helpful reader to make sure I saw the recent First Circuit panel ruling running the other way.  In US v. Trenkler,  No. 21-1441 (1st Cir. Aug. 29, 2022) (available here), the panel stressed and reiterated a prior ruling setting out compassionate release rules:

Ruvalcaba convincingly set the standard for a district court reviewing a prisoner's proposed reasons for compassionate release, making it clear that district courts have the discretion to review prisoner-initiated motions by taking the holistic, any complex-of-circumstances approach we discussed earlier.  Indeed, this approach makes sense.  After all, it is possible that the whole may be greater than the sum of its parts, and reasons that might not do the trick on their own may combine to constitute circumstances that warrant a finding that the reasons proposed are, in the aggregate, extraordinary and compelling.  This is not to say that a district court must find a certain number of extraordinary and compelling reasons.  Rather, in conducting their reviews, district courts should be mindful of the holistic context of a defendant's individual case when deciding whether the defendant's circumstances satisfy the "extraordinary and compelling" standard -- "any complex of circumstances" contemplates that any number of reasons may suffice on a case-by-case basis, whether it's one, two, or ten.

I noted here the remarkable district court opinion last year in Trexler, and this case and so many others serve as a remarkable reminder of just how many different federal prisoners can cite to so many different circumstances when seeking a sentence modification.  A huge federal prison system necessarily creates a huge number of questions in the wake of the First Step Act's change to the compassionate release rules. 

Longest prison term yet — 10 years — given to Jan 6 rioter who assaulted police officer

As reported in this Politico piece, a " federal judge on Thursday sentenced former New York cop Thomas Webster to 10 years in prison for assaulting a police officer outside the Capitol on Jan. 6, 2021, the longest sentence handed down yet in cases that arise from the attack."  Here is more:

U.S. District Court Judge Amit Mehta described Webster’s assault on D.C. police officer Noah Rathbun as one of the most haunting and shocking images from that violent day.

“I do wish you hadn’t come to Washington D.C. I do wish you had stayed home in New York, that you had not come out to the Capitol that day,” Mehta said. “Because all of us would be far better off. Not just you, your family, country. We’d all be far better off. Yet here we are.”

Mehta said he viewed Webster’s conduct as among the most egregious of any defendant sentenced so far. Until Thursday, the lengthiest sentences had been given to Texas militia member Guy Reffitt and local Virginia police officer Thomas Robertson, who were convicted by juries of attempting to obstruct congressional proceedings.

It’s the latest in a string of steeper sentences that have been issued as rioters facing felony charges — some of whom have taken their cases to trial — learn their fate from the judges who have presided over their cases for more than a year.

Images of Webster attempting to rip the gas mask off of Rathbun’s face amid broader chaos at the Capitol are among the most indelible images to emerge from the Jan. 6 attack. Mehta expressed incredulity that Webster took the stand in his own defense and attempted to argue that his effort to rip the officer’s gas mask off was really just to show him his hands and prove he wasn’t a threat.

Notably, though this case represents the longest sentencing to date for a Jan 6 rioter, the sentence of 10 years is still a full 7+ years below what the federal sentencing guidelines recommended (and what the federal prosecutors requested).

Some of many prior related posts:

• Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• 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
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions
• District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)
• Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison 

Second Circuit panel rules evidence attacking underlying conviction "cannot be raised in a § 3582 motion" for compassionate release ... and reiterates point after Concepcion

UPDATE/Clarification:  A helpful reader flagged for me that on Aug 31, the Second Circuit actually reissued its Orena opinion after having issued its original opinion on June 15.  I have now corrected/amended this post accordingly.

---- 

Just today I saw a second version of a panel opinion from the Second Circuit issued which expressly invents another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.  The per curiam opinion in US v. Orena, No. 21-2747 (2d Cir. June 15, amended Aug. 31, 2022) (original available here), get started this way:

As part of the First Step Act of 2018, Congress authorized courts to reduce a term of imprisonment upon motion by a defendant. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C. § 3582(c)(1)(A)).  Section 3582(c)(1), colloquially known as the “compassionate release” provision, permits a district court to reduce a previously imposed sentence “after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”  Appellant Victor Orena contends primarily that the district court erred in denying his motion pursuant to § 3582 by refusing to consider new evidence that he says calls into question the validity of his conviction.

We conclude that when considering a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 U.S.C. § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 U.S.C. § 2255 or § 2241. Because the district court properly refused to consider such evidence here as to the § 3553(a) factors and otherwise did not abuse its discretion in denying Orena’s motion for compassionate release, we affirm.

Here is a key paragraph from the opinion:

Orena primarily contends that the district court erred by assuming the PSR’s accuracy and refusing to weigh his new evidence as part of the § 3553(a) factors.  We disagree. Section 3582(c)(1)(A) directs courts to “consider[] the factors set forth in section 3553(a).”  Section 3553 in turn provides “[f]actors to be considered in imposing a sentence.” 18 U.S.C. § 3553(a) (emphasis added).  To impose a sentence, there must necessarily be a valid conviction.  If a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to 28 U.S.C. § 2255, which imposes particular procedural limitations.  A defendant cannot evade this collateral review structure by attacking the validity of his conviction through § 3582.  Accordingly, we conclude, arguments challenging the validity of an underlying conviction cannot be raised in a § 3582 motion as part of the § 3553(a) sentencing factors.  Rather, such arguments are properly raised on direct appeal or collateral review pursuant to 28 U.S.C. § 2255.  Other courts have reached the same conclusion. See e.g., United States v. Bard, No. 21-3265, 2022 WL 843485, at *2 (3d Cir. March 22, 2022) (unpublished per curiam); United States v. Miller, 855 F. App’x 949, 950 (5th Cir. 2021) (unpublished per curiam)

I get the logic of courts wanting to channel efforts to invalidate a conviction into 2255 or 2241 motions. But in some cases prisoners may be eager to highlight problems with the validity of an underlying conviction to bolster their arguments under § 3553(a) that a sentence reduction would produce a sentence that better "promote[s} respect for the law" or would help "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Because there is no express text in § 3582(c)(1)(A) that would seem clearly to bar this kind of evidence and argument, and because there is text in § 3553(a) that would seem potentially to invite this kind of evidence and argument, I think it problematic — at least for those of us concerned about textualist limits of judicial policy-making — to see another circuit court inventing another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.

As I blogged here back in June, the Supreme Court's ruling in Concepcion seem to clearly indicated that circuit courts should not be creating extra-textual limits on the discretion that Congress has given to sentencing judges.  And the defendant in this Second Circuit cases sought reconsideration based on Concepcion, which led to the reissued opinion linked below.  Here is a key added footnote in the amended opinion:

The Supreme Court’s decision in Concepcion does not conflict with our decision in this case.  In Concepcion, the Court emphasized a “longstanding tradition” of discretion afforded to courts consider changes in law or fact when sentencing or resentencing a defendant. 142 S. Ct. at 2395.  However, the Court acknowledged that that discretion is subject to constraints imposed by Congress and the Constitution. Id. at 2400–01.  One such constraint is 28 U.S.C. § 2255, which provides the procedural mechanism for Orena’s arguments regarding actual innocence and the legality of his conviction.

Download Orena Aug 31 2022

This footnote makes my head hurt, because there is absolutely no language in 28 U.S.C. § 2255 which can be fairly read as a "constraint" on what may be valid considerations in the exercise of § 3582/3553(a) discretion.  There is language in § 2255 which limits when and how § 2255 motions are to be resolved, but nothing in that provision places any express or implicit "constraint" on what should be part of compassionate release considerations.  Sigh... Cf. Lewis Carroll, Through the Looking-Glass (1871) ("'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less'.")

"The Coherence of Prison Law"

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

In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state.  In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants.  Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity.  To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. 

As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism.  When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules.  These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades.  Then came Covid-19.  As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally.  COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated.  These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.

En banc Eight Circuit reverses ruling that Missouri must improve its parole process to comply with Miller

In this post from three years ago, I noted a federal district court ruling finding that the Missouri's parole policies and practices failed to give juveniles subject to life terms a meaningful opportunity to obtain release as required by Eighth Amendment doctrines.  An in this post last year, I noted that a split Eighth Circuit panel upheld the bulk of this ruling over a dissent by Judge Colloton.  Yesterday, Judge Colloton got to turn the tables by writing a new majority opinion for the en banc Eighth Circuit that starts this way:

In 2016, in light of Supreme Court decisions interpreting the Eighth Amendment’s proscription on cruel and unusual punishment, the Missouri legislature modified state law regarding parole. The legislature enacted a statute permitting a juvenile homicide offender to petition for parole if he had been sentenced to mandatory life imprisonment without parole. A class of inmates who were juvenile offenders sued the state officials responsible for administering the parole process.  The inmates alleged that the policies and practices of the parole officials violated their rights to be free from cruel and unusual punishment and to due process of law under the federal and Missouri constitutions. The district court determined that the parole review practices were constitutionally deficient, and ordered the State to implement an elaborate remedial plan. The State appeals, and we conclude that there is no constitutional violation. We therefore reverse the judgment of the district court.

Here is a key concluding passage from the majority opinion:

In sum, the Supreme Court’s juvenile-specific jurisprudence under the Eighth Amendment does not warrant declaring a constitutional violation and imposing on the State the elaborate set of parole procedures endorsed by the district court.  A requirement to allow “some meaningful opportunity” for release, even if applicable to these juvenile homicide offenders, is satisfied here.  The juvenile homicide offenders in Missouri received more process than offenders under the regular parole process: they presented more documentary evidence than adult offenders, received longer hearings than the average parole hearing, and were entitled to consideration of statutory factors that apply only to juveniles who were formerly sentenced to life without parole.  Of course, a “meaningful opportunity” does not imply that every juvenile homicide offender must be released immediately upon eligibility for parole.  We do not believe the Court intended through its decisions in Graham, Miller, and Montgomery to judicialize the parole process in the manner urged by the inmates.

The dissent is authored by Judge Kelly and joined by Chief Judge Smith and Judge Arnold and it concludes this way:

Missouri’s parole policies and practices, when considered in combination as implemented, work to deprive Plaintiffs of their Eighth Amendment right to a meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation.  See Miller, 567 U.S. at 479. The Supreme Court has clearly stated that juvenile offenders are “constitutionally different” than adult offenders, id. at 471, and “should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential,” Graham, 560 U.S. at 79.  Because the parole review process in place under SB 590 fails to adequately “ensure[] that juveniles whose crimes reflect[] only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence,” Montgomery, 577 U.S. at 212, it violates the Eighth Amendment.

Prior related posts:

• Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment
• Split Eight Circuit panel upholds order Missouri must improve its parole process to comply with Miller

New Sentencing Project report highlights court diversion as a means to reduce juvenile justice disparities

The Sentencing Project today released a big new report authored by Richard Mendel titled "Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice."  Here are parts of the report's executive summary:

Diverting youth from juvenile court involvement should be a central focus in efforts to reduce racial and ethnic disparities and improve outcomes in our nation’s youth justice systems.

Clear evidence shows that getting arrested in adolescence or having a delinquency case filed in juvenile court damages young people’s futures and increases their subsequent involvement in the justice system.  Compared with youth who are diverted, youth who are arrested and formally petitioned in court have far higher likelihood of subsequent arrests and school failure.  Pre-arrest and pre-court diversion can avert these bad outcomes.

Research shows that Black youth are far more likely to be arrested than their white peers and far less likely to be diverted from court following arrest.  Other youth of color — including Latinx youth, Tribal youth, and Asian/Pacific Islander youth — are also less likely than their white peers to be diverted.  The lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.

Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice....

For most youth, diversion is more effective and developmentally appropriate than court.  Compelling research finds that formal involvement in the justice system tends to undermine rather than enhance public safety and to reduce young people’s future success....

Diversion is vastly underutilized in the United States.  Of the youth referred to juvenile or family courts for delinquency each year, just 7% are accused of serious violent offenses.  Therefore, a large majority of youth accused of delinquency should be diverted rather than arrested and formally processed in a juvenile court.  Yet the use of diversion remains limited....

The diversion stage of the juvenile court process should be a top priority for youth justice reform.  Advocates should push for and system leaders must take aggressive action to address racial and ethnic disparities in diversion.  Combined, reforms to expand and improve the use of diversion offer perhaps the most important and promising avenue currently available to reduce disparities and to improve youth justice systems nationwide.

"Racial equity in eligibility for a clean slate under automatic criminal record relief laws"

The title of this post is the title of this new article published in Law & Society Review authored Alyssa C. Mooney, Alissa Skog and Amy E. Lerman. Here is its abstract:

States have begun to pass legislation to provide automatic relief for eligible criminal records, potentially reducing the lifelong collateral consequences of criminal justice involvement.  Yet numerous historical examples suggest that racially neutral policies can have profoundly disparate effects across racial groups.  In the case of criminal record relief, racial equity in eligibility for a clean slate has not yet been examined.  We find that in California, one in five people with convictions met criteria for full conviction relief under the state's automatic relief laws.  Yet the share of Black Americans eligible for relief was lower than White Americans, reproducing racial disparities in criminal records.

We identify two policy amendments that would reduce the share of Black men in California with convictions on their criminal records from 22% to 9%, thereby narrowing the difference compared to White men from 15 to seven percentage points.  Put another way, an additional one in seven Black men currently has a conviction record, compared to their White counterparts.  This would decline to an additional one in 14 if both hypothetical policy amendments were incorporated.  We close with discussion of criminal history data quality limitations, which pose a second key challenge to equitable implementation of automatic criminal record relief reforms nationwide.

DC sniper Lee Boyd Malvo makes still more law as top Maryland court says he must be resentenced in light of Miller

Though Lee Boyd Malvo is now 37 years old and serving a life prison term in Virginia, he was only 17 years old when he (with John Allen Muhammad) killed multiple people in Virginia, Maryland and Washington over a few weeks in 2002.  Malvo's juvenile status at the time of his awful crimes means that the Supreme Court's Eighth Amendment jurisprudence limiting juvenile LWOP sentencing has been applicable to him.

The Supreme Court had granted cert to considering Malvo's Virginia sentencing, until Virginia changed its sentencing law and mooted that case.  And late last week, as reported in this AP article, Malvo's Maryland sentencing generated a notable ruling:

Maryland’s highest court has ruled that Washington, D.C.-area sniper Lee Boyd Malvo must be resentenced, because of U.S. Supreme Court decisions relating to constitutional protections for juveniles made after Malvo was sentenced to six life sentences without the possibility of parole

In its 4-3 ruling, however, the Maryland Court of Appeals said it’s very unlikely Malvo would ever be released from custody, because he is also serving separate life sentences for murders in Virginia.

“As a practical matter, this may be an academic question in Mr. Malvo’s case, as he would first have to be granted parole in Virginia before his consecutive life sentences in Maryland even begin,” Judge Robert McDonald wrote in the majority opinion released Friday.

McDonald wrote that it’s ultimately not up to the Court of Appeals to decide the appropriate sentence for Malvo, or whether he should ever be released from his Maryland sentences.

“We hold only that the Eighth Amendment requires that he receive a new sentencing hearing at which the sentencing court, now cognizant of the principles elucidated by the Supreme Court, is able to consider whether or not he is constitutionally eligible for life without parole under those decisions,” McDonald wrote....

Judges Jonathan Biran, Brynja Booth and Joseph Getty joined McDonald in the majority. Judges Shirley Watts, Michele Hotten and Steven Gould dissented.  Watts wrote that the sentencing court took Malvo’s status as a juvenile into account.

“The record demonstrates that Mr. Malvo received a personalized sentencing procedure at which his youth and its attendant characteristics were considered, and the circuit court was aware that it had the discretion to impose a lesser sentence,” Watts wrote.

The full 108-page opinion in Malvo v. Maryland is available at this link.

US Sentencing Commission releases big new report on "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence"

Though a full new US Sentencing Commission was confirmed earlier this month, the outgoing folks are continuing to release notable new research reports as we await new action from the newbies.  The latest USSC report runs nearly 100 pages under the title "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence." This USSC webpage provides this background with key findings:

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Key Findings:

• The major innovations of the organizational guidelines are (1) incentivizing organizations to self-police their behavior; (2) providing guidance on effective compliance and ethics programs that organizations can implement to demonstrate efforts to self-police; and (3) holding organizations accountable based on specific factors of culpability.
• The most significant achievement of Chapter Eight has been the widespread acceptance of the organizational guidelines' criteria for developing and maintaining effective compliance and ethics programs to prevent, detect, and report criminal conduct.
• During the 30-year period since promulgation of the organizational guidelines, 4,946 organizational offenders have been sentenced in the 94 federal judicial districts. The majority of organizational offenders are domestic (88.1%), private (92.2%), and smaller organizations with fewer than 50 employees (70.4%).
• Six offense types accounted for 80.4 percent of all organizational offenders from fiscal years 1992 through 2021.
  • Fraud (30.1%) and environmental (24.0%) offenses, accounted for more than half (54.1%) of all organizational offenses.
  • Other common offense types were antitrust (8.4%), food and drug (6.6%), money laundering (6.1%), and import and export crimes (5.2%).
• Commission data suggests that the lack of an effective compliance and ethics program may be a contributing factor to criminal prosecutions against organizations.
  • Since fiscal year 1992, the overwhelming majority of organizational offenders (89.6%) did not have any compliance and ethics program.
  • Only 11 of the 4,946 organizational offenders sentenced since fiscal year 1992 received a culpability score reduction for having an effective compliance and ethics program.
  • More than half (58.3%) of the organizational offenders sentenced under the fine guidelines received a culpability score increase for the involvement in or tolerance of criminal activity.
  • Few organizational offenders (1.5% overall) received the five-point culpability score reduction for disclosing the offense to appropriate authorities prior to a government investigation in addition to their full cooperation and acceptance of responsibility.
  • Since fiscal year 2000, courts ordered one-fifth (19.5%) of organizational offenders to implement an effective compliance and ethics program.
• Since fiscal year 1992, the courts have imposed nearly $33 billion in fines on organizational offenders. The average fine imposed was over $9 million and the median amount was $100,000.
• Since fiscal year 1992, courts sentenced over two-thirds of organizational offenders (69.1%) to a term of probation and the average length of the term of probation imposed was 39 months.

Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant

As detailed in this Insider article, headlined "DOJ seeks the longest Capitol riot prison term yet — 17 years for 'eye-gouging' ex-NYPD officer who swung a flagpole at police," late last week federal prosecutors filed another notable sentencing memorandum for another notable Jan 6 defendant who was convicted after a trial.  Here are excerpts:

Federal prosecutors are seeking the longest sentence yet for a Capitol rioter, asking the judge to give a former NYPD officer 210 months — seventeen and a half years — in prison.

Thomas Webster was found guilty on all six charges in May, including assaulting an officer and entering restricted grounds.  His sentencing is set for September 1.

In a statement arguing for a shorter sentence, Webster's lawyer said that he had been under "an extraordinary amount of influence" from former President Donald Trump's election falsehoods on January 6, 2021.

The criminal complaint describes Webster elbowing his way through the mob to be among those leading the charge against the Capitol police barricade, shouting at one officer: "You fucking piece of shit," and "you fucking commie fuck." Webster also wielded a metal flagpole at the riot. The DOJ later released body camera footage of him repeatedly hitting the metal barrier next to the officer with it until it broke, the complaint said. The footage then shows him tackling the officer to the ground and appearing to gouge the officer's eyes.

The jury rejected Webster's argument at trial that he acted in self-defense. Webster's status as a former member of law enforcement — he had served as part of former New York Mayor Mike Bloomberg's security detail — was at odds with his conduct towards the Capitol police, his defense conceded in court documents seen by Insider.

Nonetheless, lawyer James Monroe asked the judge to consider a shorter sentence on the grounds of Webster's later remorse and the notion that former President Donald Trump misled him.  Election-fraud lies "championed by former President Donald Trump exerted an extraordinary amount of influence" over people like Webster, who had received "relentless disinformation" from Trump's supporters, Monroe said....

That 17 years and six months recommended by the DOJ stretches far beyond the longest sentence handed down to Capitol rioters so far, more than seven years given to rioter Guy Reffitt.  In that case, prosecutors sought a much longer sentence of 15 years, closer to what is being asked for Webster.

Here is a link to the Government's sentencing memo in US v. Webster.

UPDATE: I helpful commenter flagged this sentencing memorandum from the defense which makes this pitch for a much lower sentence:

Mr. Webster's Guideline range, as calculated by Probation, falls at a total offense level 37 and a criminal history category I.  At this range, the recommended sentence is 210 to 240 months.  Presumably, recognizing the disparity of imposing such a sentence, Probation has recommended a sentence of 120 months.  Mr. Webster was arrested on February 22, 2021 and remanded to Federal custody until his release on June 29, 2021, totaling 127 days of incarceration.  Upon being released by the Court on personal recognizance, Defendant has remained on a strict home confinement under the supervision of pre-trial services' High Intensity Supervision Program without incident for the last 421 days.  Regardless of the recommended range, Mr. Webster respectfully proposes a downward variance to time served together with a term of supervised release as a sufficient sentence, which is not greater than necessary, to satisfy the statutory criteria set forth in 18 U.S.C. § 3553(a).

Grappling with parole possibilities a quarter-century after horrific school shooting by young teen

The Washington Post has this compelling new piece on what would appear to be the first modern teen school shooter now about to get parole consideration 25 years after his crime.  I recommend the article in full, and it is headlined "A school shooting shattered a town in 1997. Now the gunman could get parole."  Here are excerpts:

At first, Missy Jenkins Smith thought the sound of gunfire at her Kentucky high school was a bad joke.  Her prayer group had just said, “Amen,” and their day was about to begin.  Then one of her classmates fell to the floor, shot in the head. Another student was hit. Then another.  And suddenly, the 14-year-old boy wielding a Ruger .22 fired seven bullets indiscriminately toward the teens gathered inside Heath High School on Dec. 1, 1997, the Monday morning after Thanksgiving break....

The attack upended the small town of West Paducah, in what was then a rarity in the United States: a school shooting. Three students — Nicole Hadley, 14; Jessica James, 17; and Kayce Steger, 15 — were killed and five others wounded. Michael Carneal pleaded guilty and was sentenced to life in prison.  But under Kentucky law, the teenager who claimed to have been bullied was given the possibility of parole in 25 years....

Carneal is up for a hearing next month in what family members of the deceased, survivors and experts say is among the first instances that an assailant in a school shooting has a chance at being released.  The proceeding will be held Sept. 19 and 20 over Zoom to determine whether Carneal, now 39, will be released in November.

The prospect of Carneal potentially getting released has reopened wounds for those who still carry the pain from a shooting largely forgotten by America.  The case also presents a unique question as school shootings continue to afflict the nation: What should happen to child assailants who decades later become eligible for release?

Privately, survivors and families of the victims in Kentucky have grappled with whether and how to forgive him — and if the pain he has caused makes that even possible....

The West Paducah attack was among the first school shootings to rock the country — unfolding 16 months before the Columbine High School massacre in Colorado changed the perception of classroom safety. “When Carneal did what he did, he ripped the veil off that feeling of security in school,” said Assistant McCracken County Commonwealth’s Attorney Jamie Mills, “and, obviously, we have not been able to get that back.”...

In Kentucky, the state passed a juvenile code in 1986 that allows for life sentences as long as parole is considered after 25 years.  At the time, Kentucky prosecutors were given leeway from the state to try teens between the ages of 14 and 17 as adults for serious crimes. But Carneal was charged as a minor.  And in October 1998, he pleaded guilty but mentally ill — requiring him to receive mental health care while in prison.  He was later diagnosed with schizophrenia.  Carneal has repeatedly challenged his guilty plea, arguing in 2007 that he was too mentally ill to submit the plea and pushing for it to be withdrawn altogether in 2012.  Both efforts were rejected....

Dan Boaz, the commonwealth’s attorney for McCracken County, said his goal is to make sure Carneal remains “incarcerated for as long as he lives.”  Although it’s unclear how the Kentucky Parole Board — a mix of appointees from former Republican governor Matt Bevin and Democratic Gov. Andy Beshear — will act, the bar for giving a school shooter parole is much harder, given the regularity of shootings in America.

“We have seen a bit of momentum in America in acknowledging that young people tried with crimes should be given another opportunity, but a school shooting case is going to be the hardest one for a parole board,” said Rachel Barkow, a professor of law at New York University and an expert on parole.  “It’s not supposed to be based on the crime itself, but, realistically speaking, it’s very hard for any parole board not to take into account the nature of the initial crime.”

Noting the punishing reality of persistent prison debt

With a certain type of debt (and forgiveness) now a hot topic, this new AP article provides a window into another type of debt that persistently punishes.  The piece is headlined, "At $249 per day, prison stays leave ex-inmates deep in debt," and here are excerpts:

Two decades after her release from prison, Teresa Beatty feels she is still being punished.  When her mother died two years ago, the state of Connecticut put a lien on the Stamford home she and her siblings inherited.  It said she owed $83,762 to cover the cost of her 2 1/2 year imprisonment for drug crimes.

Now, she’s afraid she’ll have to sell her home of 51 years, where she lives with two adult children, a grandchild and her disabled brother.  “I’m about to be homeless,” said Beatty, 58, who in March became the lead plaintiff in a lawsuit challenging the state law that charges prisoners $249 a day for the cost of their incarceration.  “I just don’t think it’s right, because I feel I already paid my debt to society.  I just don’t think it’s fair for me to be paying twice.”

All but two states have so-called “pay-to-stay” laws that make prisoners pay for their time behind bars, though not every state actually pursues people for the money.  Supporters say the collections are a legitimate way for states to recoup millions of taxpayer dollars spent on prisons and jails.  Critics say it’s an unfair second penalty that hinders rehabilitation by putting former inmates in debt for life.

Efforts have been underway in some places to scale back or eliminate such policies.  Two states — Illinois and New Hampshire — have repealed their laws since 2019.  Connecticut also overhauled its statute this year, keeping it in place only for the most serious crimes, such as murder, and exempting prisoners from having to pay the first $50,000 of their incarceration costs....

Beatty acknowledges she was guilty of selling and possessing drugs, but said nobody told her when she went to jail that every day behind bars would cost her more than a night at a fine hotel.  “It just drags you back to despair,” said Beatty, who has had other brushes with the law over drug possession since her release from jail, but has also become a certified nursing assistant. “That’s where I feel like I’m at. I feel like no hope. Where do I go? All of this work and it feels like I’ve done it in vain.”

Pay-to-stay laws were put into place in many areas during the tough-on-crime era of the 1980s and ’90s, said Brittany Friedman, an assistant professor of sociology at University of Southern California who is leading a study of the practice. As prison populations ballooned, Friedman said, policymakers questioned how to pay for incarceration costs. “So, instead of raising taxes, the solution was to shift the cost burden from the state and the taxpayers onto the incarcerated.”

Laws vary from state to state.  Many, like Connecticut, only go after inmates for the cost of incarceration if they come into money after leaving prison.  A few, such as North Carolina, have laws on the books but almost never use them, Friedman said.