Sentencing Law and Policy

"Irrational Collateral Sanctions"

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

In the modern era, a criminal sentence is rarely truly over just because someone has served their time.  Instead, both legal and social barriers continue to haunt most people who have been convicted of crimes for years.  These barriers often persist long past the point of making good sense.

While social barriers like stigma are not always easy for lawyers and lawmakers to address, legal barriers like so-called “collateral sanctions” (also known as “collateral consequences”) are their bread-and-butter.  In Part I of this Essay, I tell an anonymized client story that illustrates many of the existing efforts to blunt the effects of collateral sanctions in Ohio.  In Part II, I discuss in more depth both the problem of collateral sanctions and both the challenges and opportunities posed by existing remedial efforts.  In Part III, I discuss the opportunity for rational-basis challenges to irrational collateral sanctions when other remedial opportunities are unavailing. 

Split Washington Supreme Court revisits its limits on long prison terms for juvenile offenders

As explained in this AP article, a "year after saying virtual life sentences are unconstitutional for teenage killers, the Washington Supreme Court changed course Thursday in a split ruling that drew irate dissents from four justices.  The 5-4 decision was a striking departure for a court that in recent years has steadily embraced research showing that juveniles’ brain development typically makes them less culpable than adults, and which has made significant efforts to undo the impact of racial bias in the criminal justice system."  The majority opinion in Washington v. Anderson, No. 97890-5 (Wash. Sept. 8, 2028) (available here), starts this way:

Tonelli Anderson is serving a 61-year sentence for two first degree murders he committed at age 17. Anderson asks us to hold that his sentence is unconstitutionally cruel in violation of article I, section 14 of Washington’s constitution.  He argues that this court’s recent decision in State v. Haag announced a bright line rule that no juvenile offender can ever receive a sentence of 46 years or longer — no matter how serious or numerous their crimes may be — and so his sentence is unconstitutional because it is longer than 46 years.  We disagree with Anderson’s interpretation of Haag.

Haag is properly understood as announcing that article I, section 14 of Washington’s constitution limits the category of juvenile offenders who can receive de facto life without parole (LWOP) sentences, the harshest punishments possible for juvenile offenders under Washington law.  In Haag, we determined that a particular juvenile offender could not receive such a harsh punishment because his crime reflected youthful immaturity, impetuosity, and failure to appreciate risks and consequences. But when, as here, a juvenile offender’s crimes do not reflect those mitigating qualities of youth, Washington’s constitution does not bar a de facto LWOP sentence.

The King County Superior Court properly considered all of Anderson’s evidence regarding the mitigating qualities of his youth and his rehabilitation while in prison.  In light of that evidence and the trial record, the court appropriately determined that Anderson’s crimes do not reflect youthful immaturity, impetuosity, or failure to appreciate risks and consequences. Article I, section 14 of Washington’s constitution therefore does not prohibit Anderson’s 61-year sentence. We affirm.

A dissent by Chief Justice Gonzalez starts this way:

Even if I could join the majority’s repudiation of our recent constitutional jurisprudence, I could not join it in affirming the trial court’s resentencing decision here. The resentencing judge abused her discretion by failing to meaningfully consider how juveniles are different from adults, by failing to meaningfully consider how those differences applied to Tonelli Anderson, by failing to consider whether Anderson’s case was one of the few where a life without parole sentence is constitutionally permissible, by failing to give meaningful weight to the significant evidence that Tonelli Anderson had rehabilitated himself while in prison, and by improperly allocating the burden of proof to him at resentencing. For all these reasons, I respectfully dissent.

Another dissent from Justice Yu starts this way:

I agree with the dissent that Tonelli Anderson is entitled to resentencing pursuant to this court’s precedent, which recognizes “that life is more than just life expectancy and that a juvenile must have a meaningful opportunity to rejoin society after leaving prison.” State v. Haag, 198 Wn.2d 309, 328, 495 P.3d 241 (2021). I write separately to elaborate on the ways in which the majority undermines our precedent, ignores fundamental principles of stare decisis, and disregards this court’s own call to “recognize the role we have played in devaluing [B]lack lives.” Letter from Wash. State Sup. Ct. to Members of Judiciary & Legal Cmty. at 1 (June 4, 2020), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20 News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4-H5P7]. Today’s decision is contrary to both longestablished principles of law and newly recognized principles of justice. I therefore respectfully concur in the dissent.

Fascinating data and transparency project from Colorado district attorneys

The Denver Post has this lengthy and interesting account of a remarkable new data project in Colorado involving numerous district attorneys.  The piece should be read in full and is headlined "Eight Colorado DAs unveil detailed data about prosecutions, racial disparities; Public dashboards show racial disparities, offer unprecedented detail."  Here is how the article gets started:

Eight Colorado district attorneys released detailed data about their operations Thursday in an attempt to be more transparent with the public amid broader criticism of racial disparities in and distrust of the U.S. criminal justice system.

The data offers a look at the inner workings of Colorado’s prosecutors in unprecedented detail, with researchers tracking 55 different aspects of prosecution, ranging from charging and bond decisions to sentencing to how long cases take to be resolved

“For too long and too often, the justice system feels like a black box of information,” 18th Judicial District Attorney John Kellner said during a news conference Thursday. “…That changes today.”

The data is presented publicly in online dashboards — collected at data.dacolorado.org — for each of the eight offices that participated in the research project, which was funded by an $882,000 grant from the Microsoft Justice Reform Institute. The research was carried out by the University of Denver’s Colorado Evaluation and Action Lab and by the Prosecutorial Performance Indicators project.

Spotlighting disparities in voter fraud prosecutions and punishments

The New York Times has this lengthy new piece highlighting that the uneven application of justice around the country when it comes to cases of voter fraud.  The full headline of this piece highlights its themes: "In Voter Fraud, Penalties Often Depend on Who’s Voting: Cases in Florida and a survey of prosecutions nationally indicate that despite the furor over voter fraud, prosecutions remain exceedingly rare and penalties vary wildly."  Here is how this piece starts:

After 15 years of scrapes with the police, the last thing that 33-year-old Therris L. Conney needed was another run-in with the law. He got one anyway two years ago, after election officials held a presentation on voting rights for inmates of the county jail in Gainesville, Fla.  Apparently satisfied that he could vote, Mr. Conney registered after the session, and cast a ballot in 2020.  In May, he was arrested for breaking a state law banning voting by people serving felony sentences — and he was sentenced to almost another full year in jail.

That show-no-mercy approach to voter fraud is what Gov. Ron DeSantis, a Republican, has encouraged this year during his re-election campaign.  “That was against the law,” he said last month about charges against 20 other felons who voted in Florida, “and they’re going to pay a price for it.”

But many of those cases seem to already be falling apart, because, like Mr. Conney, the former felons did not intend to vote illegally.  And the more typical kind of voter-fraud case in Florida has long exacted punishment at a steep discount.

Last winter, four residents of the Republican-leaning retirement community The Villages were arrested for voting twice — once in Florida, and again in other states where they had also lived. Despite being charged with third-degree felonies, the same as Mr. Conney, two of the Villages residents who pleaded guilty escaped having a criminal record entirely by taking a 24-hour civics class. Trials are pending for the other two.

Florida is an exaggerated version of America as a whole.  A review by The New York Times of some 400 voting-fraud charges filed nationwide since 2017 underscores what critics of fraud crackdowns have long said: Actual prosecutions are blue-moon events, and often netted people who didn’t realize they were breaking the law.

Punishment can be wildly inconsistent: Most violations draw wrist-slaps, while a few high-profile prosecutions produce draconian sentences.  Penalties often fall heaviest on those least able to mount a defense.  Those who are poor and Black are more likely to be sent to jail than comfortable retirees facing similar charges.

New Sentencing Project report addresses "How Many People Are Spending Over a Decade in Prison?"

The Sentencing Project has long done a lot of great work on long sentences, especially through various reports on life sentences (examples here and here).  Today, The Sentencing Project has a notable new publication looking at persons serving sentences of a decade or longer.  This new report is titled with a question: "How Many People Are Spending Over a Decade in Prison?".  But the subtitle of the report provides this answer: "In 2019, over half of the people in U.S. prisons — amounting to more than 770,000 people — were serving sentences of 10 years or longer — a huge jump from 2000."  Here are other "key findings" from the start of the report:

• Nearly one in five people in U.S. prisons—over 260,000 people—had already served at least 10 years in 2019. This is an increase from 133,000 people in 2000—which represented 10% of the prison population in that year.

• In California, 29% of imprisoned people had already served at least 10 years in 2019. In Washington, DC, the level was even higher in 2020, at 39%. By 2021 in Texas, 25% of imprisoned people had served at least a decade.

• Over 770,000 people in U.S. prisons were serving sentences of 10 years or longer in 2019—56% of the total prison population. This is an increase from 587,000 people in 2000—which represented 44% of the prison population in that year.

• The 12 U.S. jurisdictions where two-thirds or more of the prison population are serving sentences of at least a decade are: Georgia, West Virginia, Alabama, Montana, Hawaii, Oklahoma, Louisiana, Utah, Maryland, Michigan, Mississippi, and Washington, DC.

• In 2019, Black Americans represented 14% of the total U.S. population, 33% of the total prison population, and 46% of the prison population who had already served at least 10 years.

Should workers who are incarcerated at least be paid minimum wage?

The question in the title of this post is prompted by this new Stateline piece headlined "Advocates Seek to Make Prison Work Voluntary," and also by the recent ALCU report, Captive Labor: Exploitation of Incarcerated Workers.  Here are excerpts from the Stateline piece:

Prisoners making license plates is a popular stereotype, but most of the nation’s 800,000 incarcerated workers hold jobs more similar to those on the outside: They cook and serve food, mop floors, mow lawns and cut hair.

Unlike other workers, though, the incarcerated have little say, if any, in what jobs they do. They face punishment if they refuse to work and are paid pennies per hour — if that.

The nation’s racial reckoning of the past few years has prompted a reevaluation of penal labor as a legacy of slavery, spurring people to question whether incarcerated people should be required to work in 2022. Activists are pressing for an end to work requirements or, if they continue, for higher wages....

In March, Colorado enacted a law that will pay the state minimum wage of $12.56 an hour to inmates who are within a year of their release date and work for private companies through the state-run Take TWO (for Transitional Work Opportunity) program.   “This is actually a very conservative approach,” Colorado state Rep. Matt Soper, the Republican sponsor of the bipartisan measure, said in an interview. “We need workers, and they need to gain skills before release.”

To pass the bill, though, Soper first had to explain why paying prisoners the minimum wage was a good idea.  “Some victims and victims’ advocacy groups opposed the idea at first, and then they wanted every dollar to come back in restitution,” he said. “But that’s not a good system, because we want [the former offenders] to have savings as seed money to restart their lives. My goal is to disrupt the current model of recidivism.”

But no Colorado inmates are participating right now.  Take TWO, which began in 2019 and reportedly had about 100 participants in March, is “on a pause while we review and update logistics and criteria and address some of our immediate staffing shortages,” the Colorado Department of Corrections said in an email.

Prison minimum wage bills are pending in New York and Illinois.  Since 2019, bills have failed in Arizona, Maryland, Mississippi, Nevada, Texas and Virginia, according to the ACLU....

Proponents of making prison work more remunerative and meaningful also argue it’s not productive for society to keep incarcerated workers in dead-end jobs that fail to prepare them for employment outside the prison walls or allow them to accumulate some savings for when they are released.  Studies show poverty and unemployment lead to recidivism.

Some crime victims groups also support raising prison wages, said Lenore Anderson, founder and president of the Alliance for Safety and Justice, an Oakland, California-based group that works to end mass incarceration, reduce crime and support survivors of violent crime.  The public assumes that people hurt by crime and violence would want the worst possible prison experience for those who committed the crimes, Anderson said.  “But that’s not what we find. People want them to succeed,” she said. “How do we know after someone has served time they’re prepared for living in society? That’s what rehabilitation, work and education programs do. Wages are part of that. It would be very consistent with smart rehabilitation to align prison wages with wages on the outside.”

The average wage nationwide for incarcerated workers who maintain prison facilities ranges from 13 cents to 52 cents an hour, according to the ACLU and Global Human Rights Clinic.  In seven Southern states — Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina and Texas — almost all work by prisoners goes unpaid. “It’s not hard to imagine that’s a vestige of slavery,” said Jennifer Turner, the ACLU’s principal human rights researcher and primary author of the report, “Captive Labor: Exploitation of Incarcerated Workers.”

Prior recent related post:

• Notable new ACLU report on prison labor in the United States 

"Policing Mass Incarceration"

The title of this post is the title of this recent article available via SSRN authored by Fred O. Smith, Jr.  Here is its abstract:

In Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Dean Erwin Chemerinsky issues an indictment of the Supreme Court, charging that institution with facilitating undue state violence, wrongful convictions, invasions of dignity, and racial inequality.  The Supreme Court has produced these consequences by offering needlessly narrow remedies for constitutional wrongs and by issuing crabbed constructions of criminal procedural rights.  Chemerinsky’s indictment is written with clarity, comprehensiveness, and humanity.

This Book Review argues that mass incarceration presents an immense barrier to the author’s goals of producing less violent, more accurate, less invasive, and less racist policing.  First, many of Chemerinsky’s proposals for police reform assume a system of criminal trials.  In our system of mass incarceration, the overwhelming majority of incarcerated persons never receive a trial.  If the criminal legal system did attempt to rely on trials instead of coerced guilty pleas, the system would collapse under the weight of the sheer number of people we prosecute.  Second, Chemerinsky argues that we should revisit and raise the requisite standard for police to search a suspect from reasonable suspicion to probable cause.  But in a system of mass incarceration, probable cause is not hard to come by. The more things we label “crime,” the more reasonable it is to believe that someone is likely committing one.  Third, mass incarceration feeds on legal reforms that are not aimed at decarceration.  A “criminal caste” is more tolerable if the government gives the caste members “rights” before stripping them of humanity and core dimensions of citizenship.

It is imperative to reverse and control mass incarceration to achieve lasting transformation of the police.  There is no equitable way to police in a world of mass incarceration. 

South Carolina state judge declares execution by firing squad and electric chair to be unconstitutional

As reported in this AP piece, a "South Carolina judge ruled Tuesday that the state's newly created execution firing squad, as well as its use of the electric chair, are unconstitutional, siding with four death row inmates in a decision sure to be swiftly appealed as the state struggles to implement its new execution protocols." Here is more:

“In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die," Judge Jocelyn Newman wrote in a case brought by the inmates against the state. "In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

Last month, Newman heard arguments from lawyers for four men on the state's death row, who said that the prisoners would feel terrible pain whether their bodies were “cooking” by electricity or heart stopped by a marksman’s bullet — assuming they are on target.

Attorneys for the state countered with their own experts who said death by the yet-to-be-used firing squad or the rarely used electric chair would be instantaneous and the condemned would not feel any pain. The state Supreme Court had ordered Newman to issue her decision within 30 days, with further appeals all but certain. Officials with the state Corrections Department told The Associated Press on Tuesday that the agency was “assessing the ruling.”

From 1995 to 2011 — when the state’s last execution was performed — South Carolina carried out the death penalty with lethal injections on 36 prisoners. But, as the state’s supply of lethal injection drugs expired in 2013, an involuntary pause in executions resulted from pharmaceutical companies' refusal to sell the state more. Condemned inmates technically had the choice between injection and electrocution, meaning that opting for the former would in essence leave the state unable to carry out the sentence.

Prison officials sought help from state lawmakers, who for several years had considered adding the firing squad as an option to approved methods, but debate never advanced. Last year, Democratic Sen. Dick Harpootlian and GOP Sen. Greg Hembree, both of whom previously served as prosecutors, again argued in favor of adding the firing squad option....

The ultimately approved measure, signed into law by Republican Gov. Henry McMaster last year, made South Carolina the fourth state in the country to allow use of a firing squad, and made the state's electric chair — built in 1912 — the default method for executions, thereby giving prisoners a new choice.

During last month's trial, a Corrections Department official said he devised the firing squad protocols after consulting a prison official in Utah, location of the only three inmates to die by firing squad since 1977. Colie Rushton, the department’s security director, testified the .308 Winchester ammunition to be used is designed to fragment and split up in the heart to make death as fast as possible. Much of the rest of the trial was each side calling its own experts to detail whether inmates feel any pain before they die.

In her ruling, Newman relied on this testimony, including two physicians who said that an inmate “is likely to be conscious for a minimum of ten seconds after impact.” During that time, the judge wrote, “he will feel excruciating pain resulting from the gunshot wounds and broken bones,” sensation that “constitutes torture” as it is “exacerbated by any movement he makes, such as flinching or breathing.”

"Have American jails become the inferior replacement for mental hospitals?"

The question in the title of this post is the headline of this new Salon piece.  Here are a few excerpts:

London's Bedlam psychiatric hospital is infamous today for how its staff brutally abused their patients....

Things are arguably better for mentally ill people in 21st century America.  Yet a new study by George Mason University's Schar School of Policy and Government, and published in the medical journal BMC Health Services Research, suggests that any improvement may not be as great as we'd like to think.  At present, there are 10 times as many people with mental illnesses in jails and prisons than in state psychiatric hospitals.  In other words, we've substituted jails for treatment facilities. 

Niloofar Ramezani, assistant professor of statistics at George Mason University and corresponding author of the study ... believes that the study's "most important finding," is that "one should focus on building up the community's capacity to provide mental health services."  Ramezani pointed out that their study also found that "after accounting for the availability of mental health care services, the size of the violent crime problem no longer has an effect to how the jail is used."  American society is filling up its jails with mentally ill individuals in a way that, quantifiably, cannot be plausibly linked to any kind of meaningful violent crime problem....

"We've known for some time that this country's chief response to serious mental illness is incarceration, a fact that stands out because prisons are so clearly unsuited to treating mental illness," Wanda Bertram, Communications Strategist at Prison Policy Initiative, told Salon by email.  "Our organization recently found that even though 43% of people in state prisons have been diagnosed with a mental disorder, only 26% have received some form of mental health treatment, and only 6% are currently receiving treatment."...

Ramezani and the study's other co-authors ultimately argue, as Ramezani put it to Salon, that "more research needs to be done on the type of individuals with mental health issues who are incarcerated and how they are handled.  Once we know more about them, their mental health journey, and how their mental health condition is changing over time while incarcerated, we can find better solutions to provide helpful support to them if they end up in jail."

In addition to doing more research, American policymakers need to exercise the "political will" necessary to address mental health issues in a humane and effective way.

Formerly incarcerated and advocacy groups write to new head of federal BOP

This webpage at the Sentencing Project has the full text of this letter from formerly incarcerated individuals and advocacy organizations to new Federal Bureau of Prisons Director Colette Peters advocating for various reforms.  The full letter is worth a full read, and here are a few excerpts:

As people formerly incarcerated in US Bureau of Prisons facilities and organizations dedicated to civil rights and justice, we know well the challenges that await you and hope to share with you our concerns and advice for advancing the systemic reform you have pledged to achieve.  We have all witnessed the Bureau’s failure to provide adequate medical care, safe conditions, and rehabilitative programs.  We ask you to bring the Bureau into compliance with federal law and to lead the Bureau toward a more humane future grounded in transparency and accountability....

Federal prisons are plagued by inadequate medical care, overcrowding, staff shortages, unsanitary conditions, violence, and abuse.  These conditions are well-documented in media coverage, Office of Inspector General and Bureau reports, and congressional testimony.  Following a recent oversight hearing on July 26, Senator Ossoff observed within FCI Atlanta that “conditions for inmates were abusive and inhumane” and that “stunning failures of federal prison administration” “likely contributed to the loss of life.”5) FCI Atlanta is not unique; all federal prisons urgently need reform....

Compassionate release can save the lives of medically vulnerable people, ease staff shortages by reducing the prison population, and provide mercy.  Yet the Bureau rarely uses its power to file motions for compassionate release in extraordinary or compelling circumstances.... [O]ver the first 13 months of the pandemic, the Bureau only ultimately approved 36 compassionate release requests, fewer than in 2019.  You have the power to change that.  We urge you to normalize the use of compassionate release to save lives, reunite families, and make federal prisons safer....

In 2018, Congress passed the First Step Act, a vital piece of legislation that gave many people hope.  Congress recognized that people grow and change, and that it was in the interest of the American people and public safety to allow individuals to earn the ability to come home sooner by completing rehabilitative programs.  But today, almost five years later, the Bureau has still failed to fully implement the First Step Act....

Abuse, corruption, and misconduct have been apparent within the Bureau for decades, but leadership has too often failed to act. In 2019, the House Subcommittee on National Security found that misconduct in the federal prison system is widespread and routinely covered up or ignored, including by senior officials.  The recent oversight hearing on FCI Atlanta highlighted decades of corruption and abuse and inaction by the Bureau Director.  We urge you to set a new standard and lead the Bureau towards transparency and accountability.

"Condemning Those with Multiple Disabilities to Die: Dual Diagnosis of Substance Abuse and Intellectual Disability in Capital Sentencing Proceedings"

The title of this post is the title of this new article authored by Aliya Sternstein and John R. Mills now available via SSRN.  Here is its abstract:

While the execution of defendants who score significantly low on intelligence tests, struggle to adapt their behavior to their environment, and experience these deficits during the developmental years is unconstitutional -- some courts have imposed or upheld death sentences because they find the defendant also has a drug addiction.

These courts misread the no longer used technical phrase “related to” in the above medical criteria for an intellectual disability (ID) diagnosis.  The criteria stated that shortfalls in adaptive behavior must be “related to” low intellectual functioning.  The long-settled medical community consensus is that there is no requirement to identify the psychological causes of these adaptive deficits.  But the misinformed courts have improperly held that related to means “caused by” instead of “co-existing with,” requiring proof of a negative: that the accused’s deficits in behavior are not caused by a substance use disorder.  This legal and medical error is common in some jurisdictions.  That is so, even in light of U.S. Supreme Court instructions to be informed by the medical consensus when assessing ID.

Although a great deal has been written about the exemption of those with ID from execution, little legal scholarship has addressed the intersection of substance abuse, Supreme Court reliance on the medical consensus in death eligibility decisions, and a misunderstanding or disregard of the consensus that addiction may and often do co-exist with ID.  Limited social skills and a self-perception of being different from others can foster loneliness and an urge to fit in that defendants with ID overcome by abusing drugs and alcohol.  The high Court has explicitly recognized the same: because people with ID often have other psychological impairments, the “existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”

Judges and jurors perhaps deny protection to defendants with addictions and ID because of a misperception that those with substance use disorders are more blameworthy for their plight than defendants with additional psychological disorders or those with only ID.  But neither the medical consensus nor the Supreme Court has ever suggested that addiction changes the level of culpability of an offender with ID.  Quite the opposite: ID may heighten the risk of developing a substance use disorder.

This paper makes the straightforward case that a defendant, who otherwise meets the ID criteria, cannot be excluded from the constitutional prohibition on executing those with ID simply because of a dual diagnosis of substance abuse. Accordingly, courts must not require a defendant asserting ineligibility for execution to show that their deficits in adaptive behavior are “related to” an intellectual impairment and not related to substance abuse or some other psychological impairment.

Noticing surprisingly low federal guideline range for sexual abuse of prisoners

For a variety of reasons, it can be all too easy to conclude that all of the federal sentencing guidelines are set way too high.  After all, federal judges impose sentences below the guidelines in more than half of all cases (see Table 8), and they do so even more frequently in certain child porn, drug and economic cases (see Table 10).  But this AP report on a notable recent federal sentencing in California highlights that there can be cases in which federal judges conclude the applicable guideline is way too low.  The piece is headlined "Chaplain who sexually abused inmates gets 7 years in prison," and here are just some of the details:

Behind a closed chapel office door inside a federal women’s prison in California, a chaplain forced inmates seeking his spiritual guidance to have sex with him, exploiting their faith and their powerlessness behind bars for his own gratification, prosecutors said.

James Theodore Highhouse was sentenced Wednesday to seven years in prison — more than double the recommended punishment in federal sentencing guidelines.  U.S. District Judge Haywood S. Gilliam Jr. said the guidelines, which call for a sentence of less than three years, “seriously underestimate the seriousness” of Highhouse’s conduct. “It’s hard to come up with the right words to describe how egregious an abuse of these victims this was,” Gilliam said.

Highhouse is among five workers charged in the last 14 months with sexually abusing inmates at the Federal Correctional Institution in Dublin, California, and the first to reach the sentencing phase of his case.... Highhouse must register as a sex offender once he’s released from prison, Gilliam said.

Highhouse, who was arrested in January and pleaded guilty in February, would tell women he abused at the Bay Area lockup, that everyone in the Bible had sex and that God wanted them to be together, prosecutors said.  An Army veteran, he pressured one inmate into intercourse on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

While Highhouse, 49, was charged only with abusing one inmate and lying to authorities, prosecutors say he engaged in predatory conduct with at least six women from 2014 to 2019 — including one he counseled at a veterans hospital where he worked before joining the federal Bureau of Prisons, where allegations were routinely ignored.  “Highhouse ruined my life — he truly did,” one inmate said in a victim impact statement. “I don’t even go to Church anymore because of him.  I have no trust in the Church and really, I don’t trust anyone because of what he did.”

Highhouse, enabled by a toxic culture of abuse and coverups at the prison, warned victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” prosecutors wrote in a sentencing memorandum. At the same time, prosecutors wrote, a prison counselor would rail about inmates “snitching” on employees, suggesting they instead “tell Trump about it,” referring to then-President Donald Trump.

Prosecutors had sought a 10-year prison sentence.  His lawyers asked for two years, the low end of the federal guidelines, which called for a sentence of 24 to 30 months.  Gilliam’s seven-year sentence matched the recommendation of probation officers who conducted Highhouse’s pre-sentence investigation....

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.... Highhouse pleaded guilty on Feb. 23 to two counts of sexual abuse of a ward, two counts of abusive sexual contact and one count of making false statements to federal agents.

All of the charges stem from allegations Highhouse repeatedly abused a female prisoner over a nine-month span in 2018 and 2019. That woman said in a victim impact statement that she cried herself to sleep after testifying before a grand jury about Highhouse’s abuse....

Other allegations against Highhouse, previously kept quiet by Dublin officials, came to light during the investigation, prosecutors said....  In May, an inmate now incarcerated at another federal prison facility reported that Highhouse raped her multiple times in his chapel office after she sought him out for counseling, prosecutors said.

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.