Sentencing Law and Policy

Notable comments on drug sentencing policies from rival Senate candidates in Pennsylvania

NBC News has recently run a couple of interesting pieces based on interviews with the Pennsylvania US Senate candidates that probed some sentencing issues. Here are links to the pieces and some of the passages:

"Fetterman says his stroke recovery 'changes everything' but that he’s fit to serve as senator"

He also pushed back on Republicans who accuse him of being soft on crime. Though he used his seat on a state parole board to advocate for the early release of some prisoners — including felons convicted of murder and other violent crimes — Fetterman said paroles were only granted in a small fraction of cases and to convicts who had demonstrated remorse through years of good behavior....

He also praised President Joe Biden’s decision last week to pardon thousands of people convicted only on charges of marijuana possession at the federal level; he said earlier this year that he had pressed Biden to decriminalize pot.

At the same time, Fetterman told NBC News that he favors strengthening federal drug laws to make it easier to apply mandatory minimum sentences to fentanyl dealers, an idea incorporated into GOP legislation on Capitol Hill.

Pennsylvania, like many states, has grappled with the abuse of pain-killers such as fentanyl, a powerful synthetic opioid that can be lethal in small doses. Despite his approval for releasing some violent criminals early, and without committing to signing onto a GOP bill in Congress, Fetterman endorsed the basic aim of the legislation.

“I’d have to see what’s in front of me when it’s there. But the bottom is that being an addict, you know, we haven’t been able to arrest our way out of, you know, to the addict,” he said. “But it’s the, actually the pushers and the dealers, that’s a completely different issue. And they deserve to be in prison.”

"Oz says he supports Biden on marijuana pardons and opposes federal mandatory minimum prison sentences":

Mehmet Oz opposes federal mandatory minimum prison sentences and thinks President Joe Biden made a “rational move” by announcing a broad pardon for certain marijuana users, Oz, the Republican Senate nominee in Pennsylvania, said Thursday in an exclusive interview with NBC News.

The remarks represent a slight tack to the center in the final days of a race in which Oz, who trails in public polling, has repeatedly attacked Democratic rival John Fetterman as being too soft on crime.

Oz said he supports Biden’s decision to clear the records of ex-convicts who were in federal prison solely on charges of simple marijuana possession, a rare area of agreement with Biden and Fetterman.

“Going to jail for marijuana is not a wise move for the country. I think folks who have used marijuana and that’s the only reason they’re in jail should not have those criminal — those rulings — held against them,” Oz said, crediting Biden with a “rational move.”

He also said he broadly opposes federal mandatory minimum prison sentences, just days after Fetterman voiced support for applying them in more cases involving fentanyl dealers in an exclusive interview with NBC News.

“I really think judges should be empowered to make the difficult decisions, and they generally do it well,” Oz said. “When we tie their hands by making laws at the federal level, it hinders their ability to do what needs to be done.”

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• "Acquitted. Then Sentenced."
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen

A helpful reader sent me this morning an interesting new federal district court opinion concerning Second Amendment limits on a couple of federal criminal laws.  Here is how the opinion in US v. Price, No. 2:22-cr-00097 (SD WV Oct. 12, 2022) (available here), gets started:

The question before the court is whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, and 18 U.S.C. § 922(k), which prohibits possession of a firearm with an altered, obliterated, or removed serial number, are constitutional after the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). After considering the arguments presented here, I find that Section 922(g)(1) is constitutional, but I find that Section 922(k) is not.  For the following reasons, Mr. Price’s motion to dismiss the indictment against him is GRANTED as to Count Two and DENIED as to Count One.

Based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.  But I am neither a Second Amendment expert nor a historian, so what do I know about such matter (other than Bruen continues to provide a basis for a lot of new arguments against a lot of federal criminal laws).

Of course, the rejection of a Bruen-based attacks on felon-in-possession prohibition is already become quite common.  As the Price opinion notes "Relying on the same ['law-abiding'] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)."  What still seems notable here is that the author of this opinion, District Judge Joseph Goodwin, reads Bruen to require him to strike down another part of 18 U.S.C. § 922 while making this point: "that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering."  Price, Slip op. at 14. 

US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

In an update to this post last week, I noted that the US Sentencing Commission had produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  That analysis explained where "senior administration officials" were getting the talking point that around 6500 people were going to benefit from President Joe Biden's decision to grant a blanket pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act"  That USSC accounting also led me to wonder if we might ever get "race and gender and age and criminal history information" regarding this now-pardoned population.

Excitingly, late yesterday the US Sentencing Commission issued this news advisory announcing that it had completed "additional analyses" of the pardoned population "providing additional information on demographics and geographic distribution."  The additional USSC analyses include race and gender data (but no age and criminal history data), and the biggest story in the new analyses seems to be that the pardoned population is comprised of more Whites (41.3%) and Hispanics (31.8%) than Blacks (23.6%).  This reality may be a bit surprising given that the ACLU has repeatedly documented that states have in recent decades arrested Blacks at nearly four times the rate as whites (see here and here).  But since most federal marijuana possession offenses are concentrated near the border or on federal property (like military bases and national parks), this racial distribution perhaps should not be all that surprising.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

Some prior related posts:

• Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
• In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
• "Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?" 
• A year after tragedy, taking stock of the agony (and wondering about the costs) already surrounding the capital prosecution of Parkland shooter Nikolas Cruz
• Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter
• Will guilty pleas and apology reduce odds that Nikolas Cruz is sentenced to death for Parkland school mass murder? 
• What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz? 
• Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz
• Notable developments as defense rests in capital trial of Parkland school shooter 

New DEPC resource highlights "Drugs on the Ballot: 2022" (and in prior elections)

I am very pleased to be able to promote this great new resource page, titled "Drugs on the Ballot: 2022," authored by the great staff at the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  The page not only details  cannabis-related ballot initiatives that voters will be considering in five states this November, but it also provides a set of maps and timelines of efforts to enact and implement state cannabis reforms over time, via both ballot measures and legislation. 

This new resource was developed in conjunction with this exciting online DEPC event scheduled for later this month (October 25 at noon EDT) titled "Cannabis on the Ballot: Lessons Learned from the Marijuana Reform Movement."  The registration page for the event is at this link, and here is its description:

Ever since California voters legalized medical marijuana via ballot initiative in 1996, many advocates in the U.S. have embraced direct democracy as a means to bypass reluctant legislatures to advance marijuana legalization and broader drug policy reforms. But reforms advanced through ballot initiatives can raise distinct political and policy challenges, and recent initiatives have sometimes produced legal uncertainty about regulatory regimes and even new limits on the availability of direct democracy.  On the eve of another major election, please join our panel of experts as they discuss the pros and cons of efforts to enact and implement drug policy reforms via the ballot box and these efforts’ impact on direct democracy more generally. 

"A Nat-Con Case for Criminal Justice Reform"

The title of this post is the title of this new essay authored by Marc A. Levin at Law & Liberty. I recommend the full piece, and here is just a taste from the start and closing of the piece:

From the halls of Mar-a-Lago to the streets of Chicago, all Americans have a stake in the fair application of criminal law by a system they can trust. Indeed, there cannot be a policy area in which a principled approach is more important than in criminal justice, where lives and liberties are at stake.  So how do the principles of the emergent national conservatism movement apply to criminal justice policy?  Can they inform a center-right approach to public safety that draws on the overlap between national conservatism’s Christian worldview and universal truths?

A July 2022 manifesto entitled “National Conservatism: A Statement of Principles” crystallizes the tenets of this movement that seeks to address many Americans’ apprehension about the coarsening of our culture and erosion of our national identity.  These concerns naturally implicate the criminal justice system, which becomes the last backstop when society’s norms and institutions from the family to the education system prove inadequate, leaving the law as the only remaining form of social control, weak as it often is....

[N]either conservatives of any stripe nor anyone else should back policies that are inconsistent with public safety. However, within that universe, the principles of the manifesto are consistent with four factors for evaluating criminal justice policies: 1) Are they deeply rooted in our best traditions and in alignment with our founding principles of liberty?; 2) Do they protect and strengthen families?; 3) Do they address not just individual culpability but also drivers of criminal activity, including family breakdown, exposure to trauma, addiction, mental health, and the neighborhood environment; and 4) Do they nurture and sustain the public’s confidence in the rule of law as an expression of our shared morality?

Those policies that check these boxes can lead to a stronger, fairer, safer, and more unified nation, an objective that both national conservatives and all Americans can embrace.

Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

I was fairly impressed with how Prez Biden decided to craft and announce his marijuana possession pardons last week (basics here and here).  Blanket pardons are rare, especially in modern times, but they have a rich American history (see the great list in Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Federal Sentencing Reporter 139, 140 (2001)).  And to couple these pardons with an expedited review of marijuana's Schedule I status, which is overdue, could have a huge future impact on federal marijuana policy. 

It also struck me as notable and important that Prez Biden further called upon state Governors to follow his pardoning lead, and he did so right after he referenced the enduring consequences of even low-level marijuana convictions in this official statement:  "There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions."  Of course, even the lowest-level state marijuana convictions also can carry an array of collateral consequences, which I discussed a bit in my (now very dated) 2018 article "Leveraging Marijuana Reform to Enhance Expungement Practices."

But, in some conversations about record relief at the state level, it dawned on me that Prez Biden's work also was a missed opportunity to give Congress some prodding along with state Governors and his own agencies.  Specifically, one reason some state Governors might not feel a huge need to pardon marijuana possession offenders is the fact that most every state has some legislative/court mechanism to seal or expunge low-level convictions, and many of these mechanisms have been expanded in recent years.  But, at the federal level, there are no general record relief laws in place (though a number of bills have been proposed to remedy this legal gap).  As the folks at the Collateral Consequences Resource Center have explained in recent recommendations to Congress: 

Since 2013, most states have either expanded record relief laws enacted in the 1970’s or enacted relief for the first time.  States have tailored eligibility and procedures to the specific type of record, and more than a dozen have authorized automatic relief for certain records.  Record remedies are now authorized in almost every state and apply to many types of criminal records. The popularity of court-managed diversion is growing, and many states also offer judicial or administrative certificates to restore lost rights.

Yet Congress has thus far failed to act, leaving those with federal convictions without remedy short of a presidential pardon, and those with federal non-conviction records without any remedy at all.  In addition, many areas of federal law fail to recognize or give effect to state relief.

Prez Biden is right to be deeply concerned about the collateral consequences arising from even the lowest-level drug convictions, but he should know that federal clemency efforts are not the only or even the best way to address these concerns.  Rather, Congress needs to step up and start moving forward with the many bills proposing some form of federal record relied (the Clean Slate Act and the Fresh Start Act are some notable bills in this space, but there are a lot more possibilities).  And Prez Biden's announcement of his marijuana possession pardons would have been an especially timely opportunity for him to urge Congress to get a bill to his desk on this front.

Arguably this is a nit-pick, complaining about the federal record relief dog that did not bark when Prez Biden made his pardon announcement.  But that announcement has received a lot of attention from the press and others, and yet I do not think I have seen any new discussion of the absence of any general federal record relief mechanism.  This ugly gap in federal law merits a lot more attention, and so I cannot help but lament this missed opportunity.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

Severe federal drug sentence in a sad, high-profile case with so many stories within

I sometimes say to students (and on this blog) that certain cases could alone provide a robust foundation for teaching about so many different aspects of sentencing theory, policy and practice. Upon reading this Washington Post account of the high-profile federal sentencing of Eric Kay for providing the drugs that led to the death of Tyler Skaggs, I am yet again struck by how many notable issues and stories are sometimes tucked within a single sentencing. Here are some of the details:

Eric Kay, the former communications director for the Los Angeles Angels, was sentenced Tuesday to 22 years in prison after being convicted in February of providing the drugs that caused the 2019 death of pitcher Tyler Skaggs.  District Judge Terry Means said he went above the minimum 20 years Kay faced because of remarks he made in prison.   Prosecutors played a tape of a prison phone conversation in which Kay, whose calls were monitored and recorded, said of Skaggs: “I hope people realize what a piece of s--- he is. … Well, he’s dead, so f--- him.”

Means said he had been dreading sentencing Kay, 48, who was convicted of drug distribution resulting in death, because he felt mandatory minimums were “excessive.”  But the judge said the prison conversations showed a “refusal to accept responsibility and even be remorseful for something you caused.”

In his own remarks, Kay apologized for having “spewed vitriol” about Skaggs, prosecutors and the jury, in that and other prison correspondence. “I wanted to blame Tyler for all of this,” Kay said, calling his words “so wrong and foul.”

The emotional sentencing hearing spelled a bleak end to this phase of a legal saga that began when Skaggs, 27, was found dead in a Southlake, Tex., hotel room July 1, 2019, with oxycodone and fentanyl in his system. Kay has indicated he will appeal his conviction.  Kay, like Skaggs, was a user of illicit opioids.  During Kay’s trial in February, witnesses including several Major League Baseball players said he shared black market pain pills with them, though the government has not suggested he did so for profit.

Federal prosecutor Erinn Martin stated that Kay was in Skaggs’s hotel room when he choked on his own vomit — a contention based on key card evidence — and that he didn’t try to save the pitcher because “he freaked out and decided to save himself and his job” or because he was incapacitated himself. Martin said Tuesday that Kay knew the drugs he gave Skaggs were “likely or potentially counterfeit” and could contain fentanyl.

Kay, who did not take the stand in his own defense during the trial, did not directly address the government’s version of events Tuesday but expressed remorse for his actions, blaming his addiction.  “I will spend the rest of my days in repair,” said Kay, who wore an orange jumpsuit and was in arm and leg shackles, during remarks in which he sometimes sobbed.

Skaggs’s family members said Kay was responsible for the pitcher’s death in their own remarks in court Tuesday. “Eric Kay knew that the drugs he was giving to my son and other players [were] laced with fentanyl,” said Skaggs’s mother, Debbie, adding that “a strict sentence … has the power to dissuade people from providing lethal drugs to others.” ...  “I know no matter how much time Eric Kay gets it won’t bring back Tyler,” Skaggs’s father, Darrell, said in a statement read in court by Tyler’s aunt. “But the longer he is incarcerated, the safer everyone is.”

Kay, who was raised upper-middle class in Southern California and educated at Pepperdine University before rising to earn a six-figure salary with the Angels, had no previous criminal record.  But Martin, the prosecutor, said Kay’s prison correspondence was evidence that he hadn’t learned his lesson.  In emails and phone calls, Kay referred to the “trash-ass Skaggs family,” derided the jurors as “rednecks” with missing teeth and referred to a federal prosecutor’s “horrible makeup.” Martin also noted that Kay was allegedly caught with suboxone while in jail. “That kind of person reoffends,” Martin said. “Eric Kay isn’t going to stop.”

Kay’s attorney, Cody Cofer, said his client’s jailhouse remarks reflected the resentment of a man coming to terms with being separated from his family for two decades. “The notion that he is likely to reoffend is just not supported,” Cofer said.

Means said Kay should be incarcerated near his home of California, where he has three sons, the youngest of whom is 12. Kay’s middle child, 20-year-old Carter, said during the sentencing hearing that his father “wouldn’t do something bad willingly” and urged the judge to be lenient. “My little brother needs him most,” Carter Kay said. “I haven’t seen him smile in a while.”...

Since Kay’s trial, one of his attorneys, Reagan Wynn, has been suspended from practicing law after a Texas bar panel found he “failed to explain” to another client the facts of his criminal case. In a May hearing in Kay’s case, his other attorney at the time, Michael Molfetta, appeared to blame Wynn for having left Kay without representation during a meeting with probation officials before his sentencing....

Molfetta also has since left the case. In an interview with The Washington Post, Sandy Kay said her son had received a poor legal defense. “Tyler Skaggs was an adult male who willfully chose to engage in dangerous behavior that ended in his death,” Sandra Kay said. “And to hold someone else accountable for that is a great injustice.”

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

"Promise or Peril?: The Political Path of Prison Abolition in America"

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

This article explores whether prison abolition as a movement will, on net, lead to more productive changes to criminal justice punishment practices or instead produce a backlash that hinders reform efforts.  For those who embrace abolition as an expressive reaction to what they view as the intolerable state of American punishment practices, the answer to that question may not matter.  But others adopt an abolitionist stance precisely because they believe it is the most effective political strategy for bringing about change to American criminal justice practices.  It is this latter goal of abolition that is the subject of this Article.

The most optimistic take is that the movement could shift the conversation around crime policy for bolder initiatives that dislodge the central role of prisons and punishment and shift attention to root causes of harm.  On this view, the abolitionist perspective can shift the Overton window to embrace much broader downsizing of prisons and investment in communities than would take place without the abolitionist challenge.  Moreover, the call for abolition is just the kind of simple, powerful rhetorical move that draws people to embrace it and helps mobilize grassroots efforts for change.

There is, however, a future political path for abolition that is less rosy.  Instead of helping the cause of decarceration and improving the lives of those under the control and supervision of the state’s punitive apparatus, there is the possibility that calls for abolition could lead to more harms than they prevent.  This risk exists for two main reasons. First, because the rhetoric of abolition is absolutist — the language being used is deliberate and calls for an end to prisons — there is the risk that approach will frighten segments of the public who would otherwise support even radical decarceration but who are not prepared to rule it out entirely.  The second reason an abolitionist framing may ultimately produce more harm than good is that some who seek abolition often use that goal as the yardstick for deciding what policy changes to support.  They reject what they call “reformist reforms” that do not contribute to dismantling the existing legal order. For example, many abolitionists reject calls to invest in improvements to prisons or put in place greater staffing, even if doing so would improve the lives of currently incarcerated people, on the view that this additional funding ultimately expands the role of prisons in society and leads to incarceration being more entrenched overall.  Abolitionists have also rejected laws that would release certain groups of incarcerated people —  such as those serving offenses that do not involve violence — because of a concern that those laws exclude others.  The abolitionist framing therefore runs the risk of sacrificing too many reforms that would benefit people currently suffering from incarceration for a utopia that will ultimately not materialize.

In weighing the pros and cons of abolition as a political organizing strategy, then, a great deal turns on the likelihood of prisons being abolished.  And on that score, the relatively recent history of another recent abolition movement — the movement to close state mental hospitals and provide community care to people with mental health needs known as deinstitutionalization — strongly suggests that the more pessimistic take on the fate of prison abolition will ultimately prove correct.  Deinstitutionalization is a cautionary tale with important lessons for today’s abolitionists and their political calculus.

It is an urgent question what strategy will best address the fact that prisons and jails in the United States are inhumane and dreadful.  For those of us committed to drastic changes to patterns of policing, prosecution, and punishment that perpetuate structural inequality and fail to reduce harm, what is the best path forward to achieve those goals?  Is the rhetoric and social organizing power of abolition beneficial because it will spark a successful political movement toward decarceration, or does it bring more political risks than benefits and therefore ultimately harm the goal of weening America off its reliance on prisons, jails, and other forms of detention?

This article answers these questions by first describing the abolitionist movement in Part I.  Part II considers the policy implications of an abolitionist framework.  Part III then turns to the political calculation and analyzes the political pros and cons of an abolitionist stance.  Drawing lessons from the defund the police movement and deinstitutionalization, it highlights where and why public resistance may emerge.

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

"Three steps to setting federal prisons on the right path"

The title of this post is the headline of this new Hill commentary authored by Hugh Hurwitz, who served as Acting Director of the US Bureau of Prisons during the Trump Administration.  Here are excerpts:

The Federal Bureau of Prisons’ (BOP) mission is to safely and securely confine offenders and assist them in becoming law-abiding citizens.  By most media accounts, the BOP is failing in this mission.  Members of Congress have described the agency as “crisis plagued.”  BOP’s recent history includes allegations of sexual assault against inmates and female staff at several institutions, staff misconduct and discipline issues at all levels of the agency, serious staffing shortages, and failures to implement policies under the three-year-old First Step Act (FSA).

New Bureau of Prisons (BOP) Director Colette Peters recently testified before the Senate Judiciary Committee. Director Peters undoubtedly has a big job ahead of her.  Until recently, BOP had long been a model of quality and consistency, but has lacked permanent, consistent leadership for years.  Peters is the seventh director/acting director in seven years.

Senate committee members, other members of Congress, DOJ leadership, and many stakeholders, all are pushing Peters to do more.  Most changes and priorities will require the right resources in people, time, and money.  To reverse these trends and restore BOP’s place as the premier correctional agency in the world, Peters will need to be allowed to initially focus on three important areas.  Succeeding in these areas will open the doors to making many of the other changes she and others wish to achieve.

First, focus on the staff. Peters is known to care greatly about staff; it has been a focal point through her career in Oregon. BOP must work to fill many vacant jobs. Easier said than done, as recruiting people to work inside prison is a challenge for all correctional systems....

Second, begin to address BOP infrastructure. Inmates and staff need safe, well-maintained prisons.  Peters testified that BOP’s infrastructure is in such bad shape that they need to prioritize the life/safety issues and let other needs go unmet.  She noted that BOP has over $2 billion of structural needs and repairs, but their annual appropriation is under $100 million.  Obviously, this is unsustainable.  At the same time, BOP’s population is down to about 158,000 people from the peak of nearly 220,000.  COVID and the CARES Act showed that we can safely put more people in home confinement and halfway houses without increasing crime.  As the BOP continues to implement the FSA, it will continue to move more low risk people to community confinement or supervision, and out of prison.....

Finally, demonstrate a commitment to fully implementing the FSA, which was the culmination of years of bipartisan effort and the first major criminal justice reform legislation in a generation.  When fully implemented, the FSA reduces overly lengthy prison sentences and better prepares inmates to successfully reenter society.  Efforts to fully implement the FSA have been hampered by the pandemic, staffing shortages, and failed policy implementation.  Director Peters can’t repair all this overnight, but she needs to demonstrate to Congress, BOP staff, and all stakeholders, that implementation of this significant legislation is on the top of her list....

If Peters is given the help and resources to resolve the staffing challenges and improve the infrastructure, she will have the staff and resources needed to fully implement the FSA, increased capacity to provide mental health treatment, medical care, education, and job training — and to ensure that the 95 percent of BOP population that are returning to our communities will be good neighbors that we can all be proud of.

Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

President Joe Biden's marijuana actions on Thursday (basics here and here) were sure to generate a lot of buzz (pun intended?), and it would be impossible here to round up all of the reactions.  So I will be content here to just flag a few pieces that caught my eye:

From the AP, "Racial equity in marijuana pardons requires states’ action"

From Axios, "The politics of Biden's marijuana pardons"

From Fox News, "North Carolina governor pushes to legalize marijuana possession after Biden pardons: 'End this stigma'"

From Law Dork, "Biden's marijuana moves: The good, the bad, and the ugly"

From Marijuana Moment, "Will Governors Issue Marijuana Pardons Following Biden’s Call To Action? Dozens Are Already Weighing In"

From Reason.com, "Biden's Marijuana Reforms Are Long Overdue but Will Have Just a Modest Impact"

From Yahoo! Entertainment, "Bill Maher High-Fives Biden for Marijuana Pardons: Pot-Smokers ‘Do Show Up to Vote’"