Sentencing Law and Policy

US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year

This morning brought the first public US Sentencing Commission hearing in nearly four years, which was convened to finalize the USSC's priorities for the coming amendment year.   This new USSC news release describes all the details with links to key documents:

The United States Sentencing Commission today unanimously approved its policy priorities for the 2022-2023 amendment year ending May 1, 2023. Among its top priorities is implementation of two significant changes made by the First Step Act of 2018.

The First Step Act amended the statute providing for compassionate release to allow defendants for the first time to file for compassionate release, without having the Director of the Bureau of Prisons make a motion. This procedural option is not yet accounted for in the guidelines, leading most appellate courts to hold that the Commission’s policy statement governing compassionate release does not apply to motions filed by defendants. At the same time, in the wake of the COVID-19 pandemic, the debate about what constitutes “extraordinary and compelling reasons” for compassionate release took center stage across the nation with differing results.

“The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year,” said Judge Carlton W. Reeves, chair of the Commission. 

In addition, the First Step Act made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties. The Act expanded eligibility to certain offenders with more than one criminal history point. The Commission intends to issue amendments to section 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

The Commission also set out its intent to implement criminal provisions contained in the Bipartisan Safer Communities Act, which includes increased penalties for certain firearms offenses, and other legislative enactments that require Commission action.

The Commission published tentative priorities and invited public comment in September, receiving more than 8,000 letters of public comment in response. “The Commission is appreciative of the feedback it has received from all corners of the federal sentencing community,” stated Reeves. “As we now pivot to work on the final priorities set forth today, we look forward to a careful and detailed examination of these issues and our continued interaction with the public to ensure the federal sentencing guidelines properly reflect current law and promote uniformity in sentencing.”

The Commission will also address circuit conflicts, examine other key components of the guidelines relating to criminal history, and begin several multi-year projects, including an examination of diversion and alternatives-to-incarceration programs. “A number of judges and others within the court family expressed strong support for the programs within their own district,” Reeves said. “The Commission looks forward to hearing more from experts and researching more fully the benefits of these programs.”

The Commission will also study case law relating to guidelines commentary and continue its examination of the overall structure of the advisory guideline system post-U.S. v. Booker.

A complete list of final priorities may be found here and in an upcoming edition of the Federal Register.

From a quick review, the biggest change in the finalized priorities from the proposed priorities seems to be the addition of this new item: "(10) Consideration of possible amendments to the Guidelines Manual to address sexual abuse or contact offenses against a victim in the custody, care, or supervision of, and committed by law enforcement or correctional personnel."

As I mentioned after the release of the proposed USSC priorities, there are lots and lots of "hot topics" covered in many of the topics now to be tackled by the Commission in this list of now finalized priorities. I am extremely excited to see what the new Commission has planned for these topics.

A few prior related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission
• New US Sentencing Commission releases its first set of tentative policy priorities 
• Get ready: new US Sentencing Commission soon to finalize new policy priorities
• US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

UPDATE:  The folks at Marijuana Moment have spotlighted via this report, headlined "Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes," that the USSC's finalized priorities included a notable addition with regard to low-level marijuana offenses and criminal history.  Here are the details:

The federal U.S. Sentencing Commission (USSC) says it is considering possible amendments to guidelines on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing decisions for new convictions.

On Friday, the independent branch of the federal judiciary unanimously approved 14 policy priorities for an amendment cycle ending in May 2023. The cannabis item wasn’t included in an earlier version of the priority proposal list circulated for public feedback earlier this month, but it was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation....

Now, USSC is calling it a priority to look into amending the guidelines for defendants’ criminal history reviews when it comes to “the impact of simple possession of marihuana offenses.”...

While the commission must still develop and pass any potential amendments to its guidelines, it is possible that it could soon be the case that prior simple cannabis possession offenses would be a non-issue from a sentencing perspective for new defendants. It is also potentially the case that a new sentencing policy for cannabis criminal histories could be retroactively applied.

"Taking stock of incarcerated military veterans: a review of (and guide for) research"

The title of this post is the title of this interesting new research published in Criminal Justice Studies and authored by Matthew W. Logan, Erika J. Brooke, Mark A. Morgan & Andrea R. Hazelwood. Here is its abstract:

The sociodemographic backgrounds of inmates are essential for understanding their prison experiences and the extent to which they cope with incarceration and recidivate upon release.  The notion that military veterans might fare differently from other groups in the correctional system has existed for decades; yet scholars have only recently begun to focus on the effects that prior service has on metrics of prison adjustment and beyond. Increased emphasis on the prison experiences of military veterans necessitates a review of the studies published to date.

In the current study, we take stock of the empirical research conducted on incarcerated veterans by systematically reviewing all articles published online between 2000 and 2022 . Overall, we find little evidence to support the view that veteran status confers any specific benefits or vulnerabilities during incarceration or following release. However, given the limitations of the studies reviewed, we address several methodological concerns regarding the study of former service members and provide directions for future research.

"Courts Without Court"

The title of this post is the title of this new article just published by the Vanderbilt Law Review and authored by Andrew Guthrie Ferguson. Here is its abstract:

What role does the physical courthouse play in the administration of criminal justice?  This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center.  The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges.  This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future.  By studying post-COVID-19 disruptions around traditional conceptions of place, time, equality, accountability, and trial practice, this Article identifies how legal power can be shifted away from the courts and into the community.

Federal judge gives "real break" due to defendant's autism with home confinement sentence (when prosecutors urged nearly 5 years)

I have not been following closely or blogging about some of the latest sentencing of the January 6 rioters.  But this latest story from Politico, headlined "Jan. 6 rioter gets probation not prison after judge finds autism played a role; U.S. District Court Judge Trevor McFadden concluded that severe mental illness significantly mitigated ‘the blameworthiness’ of the defendant," struck me as worth noting.  Here are the basics:

A Jan. 6 rioter who wielded a hatchet and smashed two windows with a flagpole will serve no jail time, a federal judge ruled Wednesday, finding that Asperger’s syndrome made him susceptible to the influence of the mob.

Nicholas Rodean of Frederick, Md., attempted to address U.S. District Court Judge Trevor McFadden Wednesday and visibly struggled to complete thoughts and sentences while explaining and apologizing for his Jan. 6 conduct. At one point, he clutched his head in frustration.

McFadden ultimately chose to sentence Rodean to 240 days of home confinement.  But he said he was convinced that Rodean’s severe mental illness significantly mitigated “the blameworthiness of your conduct.”

It was an unexpected turn for a defendant whose health struggles were largely discussed under seal during his nearly two-year criminal case. Rodean was charged on Jan. 11, 2021 for his role in the Capitol breach.  McFadden found him guilty during a bench trial in July of shattering two Capitol windows with a flagpole, as well as other crimes associated with breaking into the building and disrupting congressional proceedings....

Rodean’s attorney, Charles Burnham — who also represents Donald Trump associates Jeffrey Clark and John Eastman in ongoing Jan. 6 matters — said Rodean had become fixated on politics during the pandemic, when he was isolated and without his typical support structure. He said Rodean was particularly susceptible to the influence of “assertive male figures” like Trump. And once inside the Capitol, he added, Rodean was similarly drawn in by Chansley, who commanded the attention of the crowd that day.

Rodean’s parents sat in the courtroom during the sentencing proceedings, and his sister Kimberly addressed McFadden, during which she expressed worry that prison would devastate her brother’s mental health and sideline his newly successful dog-walking business.  “Autistic people do not fare well in prison,” she said.

But it was Rodean’s own statement to the judge that appeared to be most affecting. For nearly 15 minutes, Rodean struggled to articulate his conduct on Jan. 6, describing how he consumed an intense amount of media about the 2020 Black Lives Matter protests that, at times, led to rioting. On Jan. 6, he took an Uber to the Stop the Steal rally at which Trump appeared, and then marched along with the crowd. Someone then handed him an object that he used to smash the two windows that had already been struck by other rioters.

“I am really sorry about breaking the window,” he said. “I am really sorry about other crimes that I did.”

“Are you ever going to do anything like this again?” McFadden asked him.

“No,” Rodean replied.

A day earlier, McFadden sentenced Jan. 6 defendant Hunter Seefried to 24 months in prison for similarly joining the early breach of the building and engaging in the same standoff with police outside the Senate chamber.

Prosecutors had initially recommended a 57-month sentence for Rodean.  “There is no indication that he holds any regrets regarding his participation in the riot that day,” the Justice Department wrote in a sentencing recommendation filed last week.

But in his own sentencing memo, Burnham urged McFadden to consider Rodean’s mental health and a doctor’s evaluation that found prison would be uniquely dangerous for his client.

Burnham said Rodean is susceptible to being taken advantage of, easily triggered by loud noises and other stimuli and would likely be put in protective custody by corrections officials who may not have the training for someone with Asperger’s syndrome — forcing him into prolonged periods of isolation.  “We submit that Nicholas’ ‘history and personal characteristics’ make this a unique case among the hundreds of prosecutions to come out of that day,’ Burnham wrote.

GOP state legislators file articles of impeachment against Philly DA Larry Krasner

As reported in this new AP piece, "Pennsylvania state House Republicans on Wednesday introduced a measure to impeach Philadelphia’s Democratic district attorney, saying they may add session days to get the job done before the two-year legislative term expires next month."  Here is more:

Rep. Martina White, the only House Republican who currently represents the city, sponsored the 22-page resolution aimed at removing District Attorney Larry Krasner a year after he was overwhelmingly reelected.

White and about two dozen other House Republicans announced the move at a Capitol news conference.  White accused Krasner of “dereliction of duty and despicable behavior” and running an office with a “staggering amount of dysfunction.” She said Krasner is “responsible for the rise of crime across our city.”

Krasner tweeted just before the news conference that those seeking his removal “don’t allege I’ve committed a crime.”...

White’s impeachment resolution takes aim at his management of the office, policies regarding not prosecuting prostitution or marijuana possession cases, treatment of immigration defendants, gun crimes and cash bail. Backers of his removal blame him for recent sharp increases in the city’s number of killings.

“His lack of proper leadership serves as a direct and proximate cause of the crisis currently facing the city of Philadelphia,” White’s resolution states, alleging his policies “have eviscerated the district attorney’s office’s ability to adequately enforce the laws of this commonwealth” and endangered city residents and visitors.

The measure was sent to the Judiciary Committee. If the House votes to impeach Krasner, a trial in the Senate would require a two-thirds vote to remove him from the job.

House Majority Leader Kerry Benninghoff, a Republican from Centre, said the House will take up the proposal “as soon as it hits the floor” and has been reported out by the Judiciary Committee, which appears likely.

The House is only scheduled to be back in session Nov. 14-16, when leadership contests for the coming two-year session are likely to be a major distraction. But Benninghoff said the timing of the introduction of White’s impeachment resolution “has nothing to do with the election” that will occur Nov. 8.

Impeachment and removal by the Legislature is exceedingly rare, occurring most recently against Supreme Court Justice Rolf Larsen nearly three decades ago.

"The Efficiency Mindset and Mass Incarceration"

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

Efficiency often carries a positive connotation. To be efficient, especially in a job, is to get things done quickly and with little wasted effort.  As such, it makes sense that lawyers and judges see efficiency, especially in the form of plea bargaining, as a normative good, particularly since it can be used in individual cases to achieve fair results in an often unfair system.  But this view of efficiency masks the darker side of the efficient administration of justice, which has contributed to some of the underlying causes of mass incarceration.

To combat mass incarceration, reformers must think seriously about how to break lawyers and judges of their efficiency mindset.  Legal culture change in criminal courts is unlikely to be driven by legislation, court action, or lawyers and judges themselves.  Instead, this Essay suggests other sources of power that may break the efficiency mindset.  By examining these sources of power — both inside and outside of the legal culture — the Essay hopes to offer some ideas for how legal actors might start to, or be forced to, re-envision their role in mass incarceration.

Just why is it "not in the public’s best interest" for the feds to refuse to transfer to Oklahoma a prisoner scheduled for execution?

I recall a notable case from just over a decade ago in which Rhode Island was refusing to turn a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty (see story blogged here and here).   As noted here, the en banc First Circuit ultimately ruled that Rhode Island had to surrender custody of Pleau for trial on pending federal charges.  Pleau thereafter pleaded guilty to federal murder charges and avoided being sentenced to death, but not before engendering lots of interesting and notable discussion of federal and state criminal justice authority and power (see, e.g., this commentary explaining why "the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, [should be placed] back into the hands of individual states [in order] to reverse the trend toward the federalization of criminal law").

This bit of capital history, and the question in the title of this post, all came to mind when I focused on this notable recent news piece out of Oklahoma.  The story is headlined "Federal inmate set for state execution denied transfer to Oklahoma custody," and here are excerpts:

The Oklahoma attorney general is asking the U.S. Bureau of Prisons to reconsider a decision his office says could amount to unprecedented federal interference in the state’s execution process.

Federal officials have denied the state’s request to transfer federal inmate George John Hanson, known as John Fitzgerald Hanson in his Oklahoma death-sentence case. A Tulsa County jury found Hanson guilty of murdering retired Tulsa banker Mary Bowles and Owasso trucking company owner Jerald Thurman in 1999 and sentenced him to death.

Hanson, 58, is currently housed in the U.S. Penitentiary in Pollock, Louisiana, serving a life sentence plus 107 years for a series of armed robberies he committed after the murders but was convicted of and sentenced for while the state case was ongoing. He has since exhausted his appeal opportunities in Oklahoma and is slated for execution by lethal injection on Dec. 15, pending a clemency hearing Nov. 9 where Gov. Kevin Stitt could grant him mercy.

Tulsa County District Attorney Steve Kunzweiler requested the AG’s assistance after receiving a formal notice in late September of the denial that cited a reason set forward in the U.S. Code. The DA’s Office provided the Tulsa World a copy of the letter from the Bureau of Prisons.

“(The law) authorizes the Bureau of Prisons to transfer a prisoner who is wanted by a State authority to that State authority’s custody if it is appropriate, suitable, and in the public’s best interest,” the letter reads in part. “The Designation and Sentence Computation Center … has denied the request for transfer, as it is not in the public’s best interest.”

Kunzweiler balked at the vague term and said in a news release that the decision reeked of politics. In the release last week, the DA said he was “outraged” and has demanded a greater explanation. “The crimes for which Hanson is serving time in federal custody were committed after his involvement in the murders of Mary Bowles and Jerald Thurman,” he wrote. “Of what reasonable purpose is there for him to remain in federal custody — at taxpayers’ expense — when he can and should be delivered to Oklahoma authorities for the rendition of the punishment he received here?”

Kunzweiler listed several state and federal agencies from which he has sought assistance in the matter, and a spokeswoman for Oklahoma Attorney General John O’Connor said O’Connor has reached out to a Bureau of Prisons regional director “to see if he will reconsider his refusal to transfer Hanson to Oklahoma.”

The bureau’s Office of Public Affairs declined to comment for this story, stating that “based on privacy, safety, and security reasons, we do not comment on inmate’s conditions of confinement, to include transfers or reasons for transfers.”

The Tulsa World has submitted a Freedom of Information Act request to the bureau seeking an internal document that could clarify the conditions under which the decision was made.

Like the folks at the Tulsa World, I would like to hear more from the U.S. Bureau of Prisons about just why is has decided that it is "not in the public’s best interest" to allow a state to complete a seemingly lawful capital sentence.  I am not an expert on prisoner transfer protocol, but I certainly think at least some greater transparency is wholly justified here.

UPDATE:  I failed to see that Chris Geidner has been writing about this case on his Substack, Law Dork, including a new post with the latest breaking legal developments: 

"Oklahoma wants the feds to transfer a man in federal prison to their custody so they can kill him"

"Breaking: Oklahoma sues the Biden administration in the state's quest to kill John Hanson"

"Locked Out 2022: Estimates of People Denied Voting Rights Due to a Felony Conviction"

The title of this post is the title of this new report released today by The Sentencing Project.  Here is the report's overview:

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era.  In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

This 2022 report updates and expands upon 20 years of work chronicling the scope and distribution of felony disenfranchisement in the United States (see Uggen, Larson, Shannon, and Pulido-Nava 2020; Uggen, Larson, and Shannon 2016; Uggen, Shannon, and Manza 2012; Manza and Uggen 2006; Uggen and Manza 2002).  As in 2020, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latinx populations impacted.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2022 election.

Among the report’s key findings:

• An estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined by 24 percent since 2016, as more states enacted policies to curtail this practice and state prison populations declined modestly. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.7 million in 2000, 5.4 million in 2004, 5.9 million in 2010, 6.1 million in 2016, and 5.2 million in 2020.

• One out of 50 adult citizens — 2 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Three out of four people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on probation or parole.

• In three states — Alabama, Mississippi, and Tennessee — more than 8 percent of the adult population, one of every 13 adults, is disenfranchised.

• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.

• One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. Among the adult African American population, 5.3 percent is disenfranchised compared to 1.5 percent of the adult non-African American population.  More than one in 10 African American adults is disenfranchised in eight states – Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia. 

• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 506,000 Latinx Americans or 1.7 percent of the voting eligible population are disenfranchised.  Approximately 1 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

A few crime and punishment stories from the campaign trail

Last month, I noted in this post that the 2022 election campaign has seen a lot more crime and punishment talk than we have seen in a long time.  Of course, this is partly of function of the fact that violent crime clearly has spiked since the COVID pandemic and the fact voters have clearly expressed concern about this spike. 

I have mentioned in few settings that, while crime and punishment talk has become more prominent this election cycle, seemingly few 2022 candidates are talking up expanding the death penalty or seeking to increase the number of death sentences and executions nationwide.  (This DPIC fact sheet highlights the modern capital punishment lows during the Trump/Biden years.)  But, as this partial round-up of recent stories shows, lots of other tough-on-crime ideas and talk are part of this cycle's political discourse:

From the AP, "Michels wants changes to Wisconsin parole system"

Also from the AP, "Zeldin’s crime message resonates in New York governor’s race"

From the Atlanta Journal-Constitution, "In final campaign stretch, Georgia candidates clash on crime"

From the Marshall Project, "Fetterman and Oz Battle Over Pennsylvania’s Felony Murder Law"

From the New York Times, "As Republican Campaigns Seize on Crime, Racism Becomes a New Battlefront"

From Politico, "The other issue driving the midterms"

Another plug for a podcast for all sentencing fans (and especially defense attorneys)

In this post some months ago, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I thought to put in another plug for his efforts because the latest episode, "A Richer Measurement of Justice: The Novel Lolita Read as a Sentencing Memorandum," starts with a plug for this blog.  In addition, here are just some of many recent episodes sentencing fans ought to enjoy:

Your Voice Matters: Priorities for the Newly Minted Federal Sentencing Guidelines Commission

Prison Consultants and the Myth of the Fixer: How to Separate Substance from Snake Oil

A View From the Bench: Sentencing Expert Alan Ellis Discusses His Interviews with 40+ Judges About What Matters at Sentencing

Presumed Punishable: Antiracism at Sentencing

Draco: Alive & Thriving: Historical and Constitutional Roots of Modern Sentencing

Michigan school shooter Ethan Crumbley pleads guilty to all counts with sentencing next year

As reported in this AP piece, a "teenager pleaded guilty Monday to terrorism and first-degree murder in a Michigan school shooting that killed four students and may be called to testify against his parents, who’ve been jailed on manslaughter charges for their alleged role in the tragedy."  Here is more with an emphasis on sentencing dynamics:

Ethan Crumbley, 16, pleaded guilty to all 24 charges, nearly a year after the attack at Oxford High School in southeastern Michigan.  In the gallery, some relatives of the victims wept as assistant prosecutor Marc Keast described the crimes.  “Yes,” Crumbley replied, looking down and nodding in affirmation, when asked if he “knowingly, willfully and deliberately” chose to shoot other students.

The prosecutor’s office said no deals were made ahead of Monday’s plea. A first-degree murder conviction typically brings an automatic life prison sentence in Michigan, but teenagers are entitled to a hearing where their lawyer can argue for a shorter term and an opportunity for parole.

“We are not aware of any other case, anywhere, in the country where a mass shooter has been convicted of terrorism on state charges,” Oakland County Prosecutor Karen McDonald said.

The teenager withdrew his intent to pursue an insanity defense, and repeatedly acknowledged under questioning by Judge Kwame Rowe that he understands the potential penalties.

His parents, James and Jennifer Crumbley, are jailed on charges of involuntary manslaughter, accused of making the gun accessible to their son and ignoring his need for mental health treatment. Ethan Crumbley’s lawyer, Paulette Michel Loftin, said it’s possible he could be called upon to testify against them   She said they’re under a no-contact order, and he has not spoken to his parents.  Parents have rarely been charged in school shootings, though the guns used commonly come from the home of a parent or close relative....

Sheriff Michael Bouchard told reporters Monday that Ethan Crumbley still had 18 rounds of ammunition when he was arrested. “It’s my belief he would have fired every one of those had he not been interrupted by deputies going immediately in,” said Bouchard who also called Ethan Crumbley “a twisted and evil person.” “I hope he gets life without parole,” the sheriff added. “He has permanently taken lives away from four lovely souls and he’s permanently affected many, many more.”

Prosecutors earlier this year disclosed that Ethan Crumbley had hallucinations about demons and was fascinated by guns and Nazi propaganda.  “Put simply, they created an environment in which their son’s violent tendencies flourished.  They were aware their son was troubled, and then they bought him a gun,” prosecutors said in a court filing....

In addition to the counts of first-degree murder and terrorism causing death, Ethan Crumbley admitted guilt to seven counts of assault with intent to murder and 12 counts of possessing a firearm in the commission of a felony.

The judge set Feb. 9 for the start of hearings to determine if he’ll be sentenced to life without parole or get a shorter sentence due to his age, and a chance at release. His lawyers will be able to argue a variety of mitigating circumstances, including family life and mental health.  Prosecutors didn’t signal in court if they will argue for a no-parole sentence.

Prez Biden suggests disinterest in broader marijuana clemency as activists protest on behalf of pot prisoners

This new Marijuana Moment piece, headlined "Biden Has No Intention Of Extending Marijuana Pardons To Help People Jailed For Selling It, He Suggests," reports on new comments from the President about his recent clemency activity.  Here is how it starts:

President Joe Biden on Friday again touted his recent marijuana pardons proclamation, but indicated that he has no intention of granting relief to people who are in prison for selling cannabis.  “I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,” he said. “None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged.”

“You can’t sell it,” the president added. “But if it’s just use, you’re completely free.”

The comments come as activists are planning a protest including civil disobedience at the White House for Monday aimed at calling attention to those who are left behind by Biden’s existing cannabis clemency action.

It’s not clear if the president’s latest remarks simply describe the scope of his current marijuana pardons, which came alongside a separate move to review the drug’s current scheduling status under federal law, or if they are an indication he is ruling out broadening the scope of clemency relief in the future.

The latter scenario would be a great disappointment to the advocates behind the planned White House protest. Those groups, including Students for Sensible Drug Policy, Last Prisoner Project, DCMJ and others, sent a letter to Biden this month, calling his moves to date “a great first step” but saying they “did nothing to address the thousands of federal cannabis prisoners currently incarcerated.”

This extended Washington Post piece, headlined "Sentenced to 40 years, Biden’s marijuana pardons left him behind," discusses the planned protest and the prisoners who are the focal point for additional clemency advocacy:

Protesters are expected to gather outside the White House on Monday to advocate for people ... incarcerated for what they would consider nonviolent offenses that involve marijuana, especially as public perception of the substance has shifted.  Cannabis is now legal for recreational adult use in Washington, D.C., two territories and 19 states.  It is on the ballot in five more states next month.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country’s war on drugs, Biden’s announcement this month that he’d pardon people convicted of federal simple possession did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

The Last Prisoner Project, a nonprofit working on cannabis criminal justice reform that lobbied the White House on this issue, has estimated that there are roughly 2,800 people in federal prison due to marijuana-related convictions, a statistic the organization said stems from a 2021 report from Recidiviz, a nonprofit that uses technology and data to build tools for criminal justice reform....

The first step in ending the war on drugs — which has disproportionally affected Black and Brown communities — is releasing people who have been incarcerated for nonviolent marijuana offenses, said Jason Ortiz, executive director of Students for Sensible Drug Policy.

Offenses like cultivation, distribution and conspiracy, Ortiz said, are the same actions major companies are able to commercialize and profit from today. “There are multibillion dollar companies that sell thousands and thousands of pounds of cannabis a year and operate in multiple states. So if we’re going to allow for that type of commerce to happen, everyone in prison who did anything even remotely close to that should be immediately let out.”

I think it notable and worth noting that we actually have no clear accounting of how many persons may still be serving federal prison terms for "nonviolent marijuana offenses."  This recent analysis of federal prison data from January 2022 by the US Sentencing Commission suggests the number of imprisoned marijuana trafficking offenders was "only" around 2200 as of the start of this year.  Notably, the federal marijuana prisoner number was around 7500 based on USSC data from just five years ago, but sharp declines in federal marijuana prosecutions (discussed in this article) and COVID-era prison population reductions have had a huge impact on the total number now incarcerated for federal marijuana offenses.

Prior recent 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
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons
• Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"? 

UPDATE: Here is a new Washington Post piece about the protest headlined "With speeches, stars and a blow-up joint, protesters press Biden on pot."

US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

This past Friday, the US Sentencing Commission reported on the public comments it received in response to the USSC's tentative policy priorities for the 2022-2023 guideline amendment year (which were announced late last month).  Here is how the USSC describes on its website homepage what was set its way: "The Commission received more than 8,000 public comment submissions pertaining to proposed priorities for the 2022-2023 amendment year."

I would guess that eight thousand(!) comments amounts to some kind of record for the USSC.  This large number of comments surely reflects a kind of "pent up demand" given the need for guideline reforms to fully implement the First Step Act and other issues that have festered over the last four years while the Commission has lacked a quorum.  But I also suspect it reflects that many advocates may realize, circa Fall 2022, that the new USSC may be more willing and more able to advance certain federal criminal justice reforms than any other federal actors right now.

The USSC has provided a "sample of these letters" reflecting public comment at this link.  It is notable and interesting to see comments there from a Senator, from multiple federal judges, from prosecutors and defense attorneys, from probation officers, and from all sorts of interest groups and interested individuals.  Kudos to everyone involved in sharing a wide array of views to help the USSC's with its important work.  And, this Friday brings the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

A few prior related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission
• New US Sentencing Commission releases its first set of tentative policy priorities 
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"A Second Look for Children Sentenced to Die in Prison"

The title of this post is the title of this new piece now available via SSRN authored by Kathryn Miller.  Here is its abstract:

Scholars have championed “second look” statutes as a decarceral tool.  Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences.  This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing.  Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public safety.  While resentencing and even releasing these individuals would not directly result in mass decarceration, it would serve as a litmus test for expanding second look statutes to adults convicted of violent crimes — the very group for whom meaningful decarceral efforts must ultimately be aimed.

The Essay also argues that second look legislation has the potential to redress two specific sentencing problems common to cases involving children: the inability to accurately assess an individual’s capacity for change and racially discriminatory sentencing outcomes.  To redress these problems, and to avoid reflexive impositions of original sentences, this Essay recommends three critical additions to juvenile second look statutes: automatic eligibility for resentencing at age twenty-five, jury resentencing, and inadmissibility of the defendant’s original sentence.