Sentencing Law and Policy

Another round of holiday season clemency news

In this post a few days ago, I noted a few press stories about clemency grants from a few states.  At that time, I stated that it was somewhat surprising and quite disappointing that there were not more executive officials making more use of their clemency pens in this holiday season.  But it now seems I was a bit premature in my accounting, as now I see a few more state clemency stories in the news:

From California, "Newsom grants 10 pardons, including for drug crimes"

From Colorado, "Colorado governor commutes 4 inmates’ sentences, pardons 20 people, including state trooper who guarded Capitol"

From Massachusetts, "Whitmer grants 22 clemency requests, including 4 pardons"

From New York, "Hochul Grants Clemency to 13, Including a Domestic Violence Victim"

From Tennessee, "Gov. Lee Grants Executive Clemency to 16 Individuals"

From Texas, "Governor Abbott Grants Clemency To Two Texans Recommended By Texas Board Of Pardons And Paroles"

As I mentioned before, because I know of some clemency work that has not been covered in press pieces, I am sure there are more stories of seasonal grace than just what is covered in these press accounts.  Still, I view it as a real shame that we do not see many more clemency accounts from many more state during this time of year. 

En banc Sixth Circuit clings to anti-textual limits on what factors can be consider in § 3582(c)(1)(a) motions

The Supreme Court's ruling in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), seemed to be a fairly clear direction to circuit court that it was not their job to make up non-textual limits to how district courts exercised sentencing discretion.  Here are just some of the key quotes, first discussed in this post, from the Supreme Court's opinion in Concepcion: 

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Because Concepcion seemingly makes plain that the "only limitation" on "the type of information a district court may consider in modifying a sentence" are those limits in the Constitution or that Congress has expressly set forth, motions for sentence reductions pursuant to § 3582(c)(1)(a) -- so-called compassionate release motions -- could certainly include consideration as a general matter all sorts of information about changes in laws and well as changes in fact that might justify a sentence reduction.  After all, Congress has only expressly provided in statutory text that one factor could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).

But, today the en banc Sixth Circuit has decided to double-down on its anti-textual approach to § 3582(c)(1)(a) by stating another categorical limit on what can be considered an extraordinary and compelling reason under 3582 in US v. McCall, No. 21-3400 (6th Cir. Dec 22, 2022) (available here).  The majority opinion in the split en banc ruling start and ends this way: 

David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015.  Five years into his 235-month sentence, McCall moved for compassionate release under 18 U.S.C. § 3582(c)(1).  Although he cited several “extraordinary and compelling reasons” justifying a sentence reduction under that statute, the heart of his motion rested on our opinion in Havis.  Invoking that opinion, McCall argued that if he were sentenced today, he would receive a shorter sentence than he received in 2015.  The district court denied his motion, reasoning that a nonretroactive change in sentencing law could not amount to an “extraordinary and compelling” reason for a sentence reduction. We agree and affirm....

Nonretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.

As I noted when discussing a prior Sixth Circuit panel ruling to this effect, there is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that nonretroactive legal developments cannot ever factor into or generally constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  The majority here, presumably based on its own sense of policy, is seemingly eager to invent an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.  In other words, this is judicial lawmaking that is flagrantly disregarding both the statutory text enacted by Congress and the instructions of the Supreme Court in Concepcion.  Full Stop.

A notable call for next steps on federal sentencing reform (with a too modest accounting of FIRST STEP's impact)

Doug Collins has this notable new commentary at Fox News under the headline "First Step Act showed Republicans and Democrats can work together to make justice system more just."  I would recommend the full piece, and here are excerpts:

Four years ago this week, just before Christmas, both parties came together for a holiday miracle: passing the First Step Act, the most significant change to our justice system in decades.  It was a win for Republicans and Democrats in Congress; a win for then-President Donald Trump; and, more importantly, a win for thousands of American families whose lives were changed for the better through a series of prison and sentencing reforms that were fair, safe, and spoke to American values.

To date, over 7,500 folks have been able to regain their lives after the passage of the First Step Act.  These are Americans who made mistakes years ago, received unduly harsh penalties that sent them to prison for decades, and have now regained their freedom.  This year, they get to spend Christmas at home with their families thanks to this legislation.

It goes to show that when it comes to criminal justice reform, major progress is more than possible; I’ve witnessed it firsthand.  One of my proudest moments in Congress was seeing that bipartisan bill, which I worked across the aisle to put together with now-Minority Leader-elect Rep. Hakeem Jeffries, get signed into law at Trump’s desk.  It was a reminder of how much we can get done, regardless of party, on the biggest issues of the day....

As a Christian, I firmly believe that we must support redemption for those who have atoned.  The incredible, redemptive effect that passing bills like the First Step Act have across our country cannot be ignored.  And as a conservative, I believe in cutting unnecessary government waste and trimming out-of-control spending, including within our justice system.  It all comes down to what I call "M&M" — money and morals — and smart criminal justice legislation speaks to both....

As its name suggested, the First Step Act was just the first step, and there are many more steps that be taken to make our federal justice system fairer and more effective.  Even while there is so much we are divided on as a country, when it comes to reforming our broken criminal justice system, there are plenty of promising paths forward.  One of those next steps is ending one of the most unjust laws we have on the books: the cocaine and crack sentencing disparity....

Unfortunately, Congress missed its chance to build on the First Step Act.  This week, the EQUAL Act — the bipartisan bill to eliminate the sentencing disparity — was left out of end-of-year Senate negotiations.  And while the Department of Justice did recently issue sentencing guidance to fix the disparity for future cases, it is still not a permanent solution and will not retroactively help the thousands of folks still in prison serving long sentences that don’t fit the crime....

Yet despite not making it over the finish line this year, I am extremely hopeful for the future: both for this legislation, and for more paradigm-shifting criminal justice reform.  Before its untimely demise in the Senate, the EQUAL Act was approved with massive support from both the most conservative and liberal wings of the House, proving that bipartisan agreement on effective criminal justice policy is ripe for consideration in the coming Congress....  Let’s hope and pray that this time next year, our country will have taken the next step forward on criminal justice reform, and continue the great work we started with the First Step Act.  

I am quite pleased to see former Rep Collins continue to advocate for the EQUAL Act both "as a Christian" and "as a conservative."  But I think he undersells the achievements of the FIRST STEP Act when he speaks only of "over 7,500 folks have been able to regain their lives after the passage of the First Step Act."  This (somewhat unclear) BOP page, indicates as of this writing that there have been 11,421 "First Step Act releases," and I suspect that number reflects only those who have gotten out a bit earlier thanks to the "earned time" credits of the FSA. 

In addition, the BOP page reports nearly 4000 persons have benefitted from retroactive crack sentence reductions and andother nearly 4400 have benefitted from compassionate release thanks to new FSA processes.   And these BOP numbers would seem to be undercounts, as the US Sentencing Commission has reported here over 4200 retroactive sentence reductions and has reported here over 4500 grants of compassionte release.  (Of course, not everyone getting sentence reductions is getting immediately released from prison, but likely most are.)  The BOP page also reports that over 1200 persons have benefitted from expanded elderly home confinement provided by the FSA.

Though a precise accounting the the exact number of federal prisonsers who have been released somewhat earlier thanks to the First Step Act is hard to pin down, I do think it is probably twice and maybe three times as large as the 7,500 number stated by Collins.  And, assuming the newly filled US Sentencing Commission makes a variety of guideline amendments consistent with the FSA, the impacts of the First Step Act will continue to echo through the federal prison population.

Isn't a 4% post-offense "faced legal scrutiny" rate worthy of praise ... even for Prez Trump's clemency grants?

This press report about an Oregon study of pandemic-related commutations notes that, among recipients who were released early, "18% were arrested within one year of their commutation, 8% were convicted of a new crime and 2% were reincarcerated."  The press report rightly indicated that these are relatively low rates based on a comparable cohort of individuals in Oregon.  

These Oregon commutations are not really a proper point of comparison, but I am not sure how best to make the point that it is to be expected that, among any significant cohort of clemency recipients, some number are likely to face some future legal difficulties.  But this new ABC News piece about Prez Trump's clemency recipients seeks to make a huge deal about a couple of handfuls of clemency recipients having since "faced legal scrutiny."  The piece is headlined "Trump-era pardon recipients are increasingly back in legal jeopardy," and here are excepts:

An ABC News analysis of the 238 people who were pardoned or had their sentences commuted during the Trump administration found at least ten who have since faced legal scrutiny -- either because they are under investigation, are charged with a crime, or are already convicted.  Legal experts call this recurring theme unprecedented -- but not entirely unexpected, given the former president's unorthodox approach to the pardon process....

Those pardoned by Trump during his term in office included dozens of friends and political allies.  The list included celebrities, lawmakers and former aides who had been convicted of crimes ranging from fraud to murder -- including four private military contractors who were in prison for murdering 17 Iraqi citizens, including two children, in a 2007 attack in Baghdad....

Recidivism rates from previous administrations' clemencies is opaque, as federal agencies don't keep tabs on clemency grantees after their release.  But in one study reviewing former President Barack Obama's 2014 clemency initiative, which led to sentence commutations for nearly 1,700 federal drug offenders, the independent and bipartisan U.S. Sentencing Commission found only three who had been rearrested by the end of 2017.  A Texas woman was rearrested on theft charges less than a year after earning an Obama commutation on her life sentence in 2016, and another Texan pleaded guilty to drug charges less than two years after earning a life sentence commutation under Obama's 2014 clemency initiative.

Based on news accounts and other available evidence, the number of clemency grantees who have gone on to commit additional crimes remains "incredibly low," Kupers said. For Trump-era pardons, however, experts said the numbers seem disproportionately high.

I am depressingly confident that more than three persons who received clemency from Prez Obama have "faced legal scrutiny" in recent years.  But I am even more confident that I do not want the media or others spending time developing questionable clemency "recidivism" statistics or otherwise engaging in partisan spit-fights about the rare clemency recipients who do not make good use of a second chance.  Rather, I wish ABC News and othe press outlets would spend a lot more time telling the encouraging stories of the hundred and throusands of clemency recipients who have made great use of their second chances. Focusing just on grants by Prez Trump, I am thinking about the great work being done in the arena of criminal justice reform by people like Alice Marie Johnson and Weldon Angelos and Amy Povah and David Safavian and Topeka Sam.  I am sure there so many more uplifting stories to tell about clemency recipients, but I am also sure the ghosts of Willie Hortonism still have not faded away.  

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

Some holiday season news and notes about clemency (and the absence thereof)

The holiday season, especially because it is also lame-duck season, often brings some notable executive clemency stories.  Last week's decision by outgoing Oregon Gov to commute the state's whole death row is a notable example (details here).   But a quick news search reveals only a few other stories from from a few other states about some lower-profile seasonable clemency efforts:

From Arkansas, "Governor Asa Hutchinson Announces Intent to Grant Executive Clemency"

From Massachusetts, "Baker recommends another round of pardons"

From North Carolina, "NC Gov. Roy Cooper commutes six people’s sentences and pardons four others"

Because I know of some clemency work that has not been covered in press pieces, I am sure there are more stories of seasonal grace that just in these three states.  Still, I find it somewhat surprising and quite disappointing that there are not more executive officials making more use of their clemency pens.  And, as some recent commentary pieces highlight, I am not the only one hoping to see more clemency action:

Rachel E. Barkow & Mark Osler at the NY Daily News, "Biden’s cowardice on clemency"

From Reuven Blau at The City, "For ‘Clemency Season,’ Prisoner Advocates Want Hochul to Keep Promise All Year: Last December, the governor said she would change the way pardons and clemency applications were handled. But little has changed since."

From Chris Geidner at Bolts, "Landmark Push for Clemency in Oregon and Nevada Show Split Paths on Death Penalty"

From Eva Santiago at amNY, "Clemency is one way to improve safety which no one wants to talk about"

Council on Criminal Justice releases "Long Sentences: An International Perspective"

In this post earlier this year, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences.  Today, this CCJ press release, titled "New Analysis Shows U.S. Imposes Long Prison Sentences More Frequently than Other Nations," reports on a new issue brief from the CCJ Task Force.  Here are the details from the press release:

New research released today by a Council on Criminal Justice (CCJ) task force shows that while the use of prison sentences of 10 years or more has increased globally in recent decades, the United States is an outlier among nations in the extent to which it imposes them.

Long sentences are imposed more frequently and are longer on average in the U.S. compared with most other countries, according to the analysis produced for CCJ’s Task Force on Long Sentences by Prof. Lila Kazemian of the John Jay College of Criminal Justice.  The average long sentence in the U.S. is more closely aligned with criminal justice practices in Mexico, El Salvador, and other Latin American countries than with those of peer nations in Europe.

Differences in the actual amount of time people serve behind bars are smaller, the study found, owing to requirements in some countries that people serve greater portions of their court-imposed sentences before release.

The higher rate of homicide in the U.S. compared with European countries partially explains its more frequent use of long sentences, according to original calculations.  For instance, the report says that “while Georgia and Alabama were ranked first and second for the percent of the prison population sentenced to 10 or more years, these states dropped down to the 36th and 55th ranks, respectively, with the adjustment for their higher homicide rates.  Luxembourg, Italy, Spain, Croatia, and Utah are the top five users of long sentences adjusted for homicide rates.  Norway, which is ranked among the lowest nations for incarceration rate (73rd out of 75 jurisdictions included in the comparison) and percentage of people serving long prison terms (70th out of 75), jumps up to the 16th spot when considering its low homicide rate.”

“This is the most authoritative and comprehensive report to date on how long sentences in the U.S. compare with those in other nations,” said John Maki, director of the Task Force on Long Sentences. “Its findings underscore the uniquely severe features of U.S. sentencing, which has more in common with developing nations than other affluent countries.”

Because criminal justice policies and incarceration rates vary dramatically across U.S. states, Kazemian compared sentencing trends in individual states with other nations.  A higher proportion of long sentences in a jurisdiction could either be the result of greater use of such sentences or of less use of prison for more minor offenses.  As such, a high proportion of long sentences is not synonymous with more punitive sentencing policies and practices.

Additional findings in the report show that:

• Many European countries have increased their use of long sentences in recent decades.  In Germany, for instance, the proportion of the long-term prisoner population sentenced to life imprisonment increased from 21.4% in 1995 to 30.2% in 2012.

• For homicide and rape — the crimes most likely to result in a long sentence — Australia and the U.S. were leaders in the amount of time people actually serve behind bars, according to the most recent available data, with England, Wales, and Scotland not far behind.

• Comparisons of average sentence length for homicide show that the U.S. has the longest sentences among nations at 40.6 years, compared to 34.2 years for Mexico (ranked second) and 6.1 for France.  The higher average sentence length in the U.S. may partly reflect the fact that American policies allow for sentences exceeding 100 years.

• The U.S. holds a substantial portion (40%) of the world’s population of people serving life sentences, as well as the vast majority (83%) of those sentenced to life without the possibility of parole.  While most jurisdictions with life sentencing laws have a provision for release, the amount of time people must serve before becoming eligible varies widely. In Belgium, Denmark, and Finland, it’s 12 years or less. In Georgia, it’s 30 years and in Texas it’s 40 years.

The Bureau of Justice Statistics releases data on "Jail Inmates in 2021" and "Prisoners in 2021"

Just in time to ring in 2023, the Bureau of Justice Statistics in the US Department of Justice has a lot of great new data about incarceration levels and rates as of the end of 2021. This press release, titled "U.S. Jail Population Increased While Prison Population Decreased in 2021," provides these highlights (and links) to the lastest data:

The Bureau of Justice Statistics is announcing the release of statistical tables on Jail Inmates in 2021 and Prisoners in 2021. Of note, the two incarcerated populations diverged in 2021, with the number of persons held in local jails increasing by 16% from 2020, while the number of persons in prison decreased 1%.  Both populations decreased from 2019 to 2020 due to the COVID-19 pandemic.

Regarding the jail population, local jails held 636,300 persons on the last weekday in June 2021, up from 549,100 at midyear 2020.  The number of males confined in local jails increased 15% from 2020 to 2021, while females increased 22%.

The racial and ethnic composition of people held in local jails remained stable from 2020 to 2021.  At midyear 2021, about 49% of people in local jails were white, 35% were black, and 14% were Hispanic. American Indians or Alaska Natives; Asians, Native Hawaiians, or Other Pacific Islanders; and persons of two or more races together accounted for 2% of the total jail population.

At midyear 2021, 29% of persons held in jail (185,000) were convicted, either serving a sentence or awaiting sentencing on a conviction, while 71% (451,400) were unconvicted, awaiting court action on a current charge or held in jail for other reasons.  Unconvicted people in jail accounted for 81% of the increase in the jail population from midyear 2020 to midyear 2021.  Three-quarters (76%) of all persons incarcerated in local jails at midyear 2021 were held for felony offenses (485,700 persons) compared to 18% (114,000) for misdemeanors and 6% (36,600) for other types of offenses.

Based on the occupancy rate, jails are still less crowded than about a decade ago.  At midyear 2021, about 70% of jail beds were occupied, which is higher than the occupancy rate of 60% at midyear 2020 but lower than the rates from 2011 to 2019, which ranged from 81% to 85%.

The number of persons supervised by local jails outside of a jail facility increased by 12,100 (31%) from midyear 2020 to midyear 2021.  At midyear 2021, local jails supervised 50,800 persons in various programs, such as electronic monitoring, home detention, day reporting, community service, alcohol or drug treatment programs, and other pretrial supervision and work programs outside of a jail facility.

Regarding the U.S. prison population, for the eighth consecutive year, the number of persons held in U.S. prisons declined, dropping from 1,221,200 at yearend 2020 to 1,204,300 at yearend 2021.  The overall decline reflected a decrease in prison populations in 32 states that was offset by an increase in 17 states and the federal Bureau of Prisons (BOP). This one-year change is vastly different from 2019 to 2020, when 49 states (data for Idaho are not comparable) and the BOP had a decrease in the number of persons in prison, largely due to the COVID-19 pandemic.

The imprisonment rate for adult U.S. residents in state or federal prison serving a sentence of more than one year also declined (down 2%) from yearend 2020 to 2021, from 460 to 449 sentenced prisoners per 100,000 adult U.S. residents.  Over the 10-year period from 2011 to 2021, the adult imprisonment rate declined 30%.

Among racial and ethnic groups, black persons had the highest imprisonment rate in 2021 (1,186 per 100,000 adult black residents), followed by American Indian/Alaska Natives (1,004 per 100,000), Hispanics (619 per 100,00), whites (222 per 100,000) and Asians (90 per 100,000).  Compared to 2011, adult imprisonment rates declined for all racial and ethnic groups in 2021, including a 40% decrease for black persons, 37% for Hispanics, 34% for Asians, 27% for whites, and 26% for American Indian/Alaska Natives.

Regarding the offense for which people were imprisoned, more than 651,800 persons (62% of all state prisoners) were serving sentences in state prison for a violent offense at yearend 2020, the most recent year for which offense data were available.  Forty-seven percent (66,500) of all persons in federal prison were serving time for a drug offense on September 30, 2021 (the most recent date for which federal prison offense data were available), and an additional 20% (28,500) of persons sentenced to federal prison were serving a sentence for a weapons offense.

At yearend 2021, private facilities contracted to state departments of corrections or the BOP held 96,700 persons, a 3% decrease from yearend 2020.  Local jail facilities held an additional 65,400 state or federal prisoners, down 11% from yearend 2020.  Together, private and local facilities housed more than 13% of the total U.S. prison population in 2021.

The findings in the Jail Inmates in 2021 – Statistical Tables report are based on data from BJS’s Annual Survey of Jails, which BJS has conducted annually since 1982, and Census of Jails, which BJS has conducted periodically since 1970. It is the 35th report in a series that began in 1982.  Findings in the Prisoners in 2021 – Statistical Tables report, the 96th report in the series, are based on data from BJS’s National Prisoner Statistics program, which has collected data on the U.S. prison population annually since 1926.

Jail Inmates in 2021 – Statistical Tables (NCJ 304888) was written by BJS Statistician Zhen Zeng, PhD. Prisoners in 2021 – Statistical Tables (NCJ 305125) was written by BJS Statistician E. Ann Carson, PhD. 

State judge blocks plans of Nevada Pardon Board to discuss possible commutation of all state death sentences

As reported in this local article, a "Carson City District Court judge Monday ruled the state Board of Parsons may not consider commuting every death sentence in Nevada at its Tuesday meeting." The six page ruling is available at this link, and the first sentence of the last paragraph of the opinion states: "The Board's planned action, should it be permitted to occur, will violate the Nevada Revised Statutes, the Nevada Administrative Code, and the Nevada Constituion." Here is more about the ruling and the context from the press report:

Judge James Wilson issued a writ of prohibition against the board and Gov. Steve Sisolak — who asked the board to consider the commutations — after the Washoe County district attorney’s office filed an emergency petition on Friday seeking to block the move.

Wilson ruled that the board had not properly notify the families of murder victims of its intent to commute the death sentences of the 57 people currently on death row, that those inmates had not exhausted all of their appeals and that they had not applied to the board to lessen their sentences. In addition, the board is required to consider each case individually, and cannot grant “categorical” clemencies, Wilson ruled.

“The Board’s proposed action would violate the Nevada Constitution by failing to provide (victim’s families) with reasonable notice of these public proceedings, so that they may exercise their constitutional right to be reasonably heard regarding the proposed commutation of 57 death sentences,” Wilson wrote. “Each victim is entitled to be treated with fairness, respect, dignity and the right to be reasonably heard at any hearings involving the commutation of sentence.”

In addition, the law requires a consideration of each individual case on its merits, which would be impossible at Tuesday’s meeting, Wilson wrote. “Equally evident in the plain meaning of the statutory and administrative code is the Board’s obligation to make an individualized determination in each clemency matter,” Wilson wrote. “Even if individual applications had been submitted for each of the 57 persons on death row, the type of individualized determination that is mandated by (state law) and (administrative regulations) cannot be reasonably accomplished at a single meeting of the Board.”

Finally, Wilson wrote, the board can’t do a mass commutation. State law “does not permit the Board to grant ‘categorial’ exemptions, as this would amount to the Board creating statutory exceptions to a form of punishment specifically provided for by the legislature. It is not the Board’s prerogative to amend statutes.”...

The controversy began last week, when Sisolak urged the board to consider commuting every death sentence in the state. The board, which decides clemency cases in Nevada, is made up of the governor, the attorney general and all seven members of the Nevada Supreme Court. That prompted the Washoe County district attorney’s office to file a motion to block the move on Friday....

Meanwhile, Gov.-elect Joe Lombardo, a career police officer who currently serves as the sheriff of Clark County, hailed the ruling: “I’m thankful to Judge James Wilson for upholding the law, and I’m grateful that he protected the voter-approved constitutional rights of crime victims and their families.  I’m relieved that justice has prevailed through Marsy’s Law,” Lombardo said in a statement.  Marsy’s Law was a 2018 voter-approved constitutional amendment that provided rights to crime victims, including to have a notice of all hearings, to attend those hearings and to speak about the proceedings.

In addition to Washoe County, the Clark County district attorney’s office asked the Nevada Supreme Court to block Tuesday’s hearings, making similar arguments to its counterpart in Washoe County. Not only that, but Jennifer Otremba, the mother of 15-year-old murder victim Alyssa Otremba, filed a similar petition with the Supreme Court on Monday, arguing that changing the board’s agenda without giving notice to victims’ families violated Marsy’s Law.  “The Pardons Board’s rushed effort to commute all capital sentences without the mandated notice and application has not only robbed Jennifer of her right to participate, it has also deprived the Pardons Board of jurisdiction to proceed,” Otremba’s petition said.

Otremba has addressed the Legislature multiple times in recent years as an opponent of abolishing the death penalty.  Her daughter’s killer, Javier Righetti, was sentenced to die for raping and stabbing the teenager more than 80 times in 2011, during the girl’s first week at Arbor View High School.

Bills to repeal the death penalty have been repeatedly introduced in the Legislature, but none have ever passed.  In 2021, a repeal bill passed the Assembly but died in the state Senate. Sisolak at the time said he was generally opposed to capital punishment, but wanted exceptions for especially heinous crimes such as the mass shooting that took place on 1 October in Las Vegas.

"Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt)"

The title of this post is the title of a new book authored by Jeffrey Bellin and an excerpt is now available here via SSRN.  Here is the associated abstract:

Despite some reductions in recent years, the United States continues to imprison a stunningly high proportion of its population.  And the modest reforms enacted so far face an uncertain future in light of a growing perception of rising crime and the persistent allure of “tough on crime” politics.

Lasting progress requires an understanding of the true complexity of mass incarceration, including the myriad factors that fuel the phenomenon.  A new book, Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover, offers that understanding, providing a novel, descriptive account of the rise of mass incarceration that draws on the author’s experience both as an academic researcher and as a participant in the phenomenon (as a former prosecutor).  The final part of the book turns this descriptive account into a prescription for reform.  By highlighting the precise mechanisms by which legislators, police, prosecutors, judges, and other officials, overfill our prisons and jails, the book reveals a path to returning to the low incarceration rates (and low crime) that characterized the United States prior to the 1970s.

This excerpt includes the Table of Contents and the Introduction to the book, now available from Cambridge University Press.

Looking back and looking forward on federal crack sentencing after new AG Garland memos

As noted in this post, US Attorney General Merrick Garland issued new federal charging guidelines this past Friday.  There are lots of thinkgs to say about a lot of the particulars of these guidelines (including why they took so long to be produced), although the bulk of the media coverage has been about the AG Garland's specific instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."   That intruction alone justifies lots of discussion, but I will start with one "looking back" matter and one "looking forward" matter:

1.  Shouldn't past crack sentences merit "equivalent treatment" via compassionate release?   This US Sentencing Commission data analysis from January 2022 suggests that there may be 8,000 or more current federal prisonsers serving crack sentences that are much longer than they would have received if they had receicved "equivalent treatment" to powder offenders at their initial sentencing.  Though it may be claimed that not all current crack prisoners may be able to demonstrate "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A), certainly some of them are likely to be able to do so.  Presumably, federal prosecutors can and will now be fully supportive of efforts by crack prisoners to seek such reductions to at least the powder sentencing equivalent whenever there are any other bases to claim that "extraordinary and compelling reasons" support a sentence reduction.  Moreover, as I see it, the historic problems and injustices of crack sentencing is alone an "extraordinary and compelling reasons" support a sentence reduction.  I doubt federal prosecutors will agree with this assertion, but federal courts could certainly make such a finding and I would hope DOJ would not appeal such a finding if some district courts so rule.

2.  Isn't future congressional crack sentencing reform tougher now?  Literally hours before seeing the new AG charging guidelines, I blogged news reports that Congress was closing in on a deal to lower crack sentences so as to reduce (but not elimited) the statutory crack/powder disparity.  Thoughthe AG issuing discretionary charging guidelines ought not directly impact how legislators think about statutory reform, everything that happens inside the Beltway can echo through all the work other others inside the Beltway.  And, discouragingly, I have now seen this new report, headlined "U.S. Senate Talks on Cocaine Sentencing Reform Hit Roadblock," suggesting crack sentencing reform is not likely to get done:

Negotiations in the U.S. Senate to narrow sentencing disparities between crack and powder cocaine have stalled, two sources said on Monday, in what could prove a blow for criminal justice reform advocates....  [I]n the last three days, negotiations to tuck the measure into the year-end spending bill, considered key for its passage, have largely ground to a halt, the sources said.

A Friday decision by Attorney General Merrick Garland to instruct federal prosecutors to end disparities in the way they charge offenses involving crack and powder upset some Republican legislators, who accused the Justice Department of usurping congressional authority.  Separately, bipartisan negotiators have encountered unexpected opposition from top Senate Republican Mitch McConnell, one of the people said.

"A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill," Senator Chuck Grassley, the top Republican senator on the Judiciary Committee, said in a Friday statement.  "That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands."

Perhaps AG Garland already knew that Senator McConnell was going to block crack sentencing reform before issuing his bold charging guidelines. But, if there was still a realistic chance at crack sentencing reform that AG Garland disrupted simply by not waiting a few more days to issue these (long-overdue) guidelines, then this was an epic blunder in timing.

UPDATE:  This new Politico article about the omnibus bill to be passsed by Congress indicates that crack sentencing reform is not included AND that AG Garland's charging memo is the reasona why:

A bipartisan deal to narrow the sentencing disparities between crack and powder cocaine was also booted from the bill after Attorney General Merrick Garland instructed federal prosecutors last week to eliminate the sentencing disparities, sparking frustration from Sen. Chuck Grassley (R-Iowa), who accused him of blowing up the Senate deal.

Especially for federal drug sentencing statutes, it "turns out that 'and' has more meanings than one might suppose"

A couple of weeks ago in this post, I noted the notable Eleventh Circuit en banc ruling in US v. Garcon giving a broad reading to the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  Thanks to a helpful reader, I see that today a split panel of the Sixth Circuit came out the other way in US v. Haynes, No. 22-5132 (6th Cir. Dec. 19, 2022) (available here).  Here are some passages from the majority opinion explaining the court's reasoning:

Aaron Haynes argues that the district court misinterpreted 18 U.S.C. § 3553(f)(1) when it denied him “safety valve” relief from his mandatory-minimum sentence. We agree with the district court’s interpretation of the statute and affirm....

The question presented is whether — as the government argues and the district court held — this provision requires the defendant to show that he has none of the criminal history described in subsections (A)-(C); or whether instead — as Haynes argues — the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1)(B).

It turns out that “and” has more meanings than one might suppose.  By way of background, grammatical rules are an archetype of rules of conduct with which we often comply without conscious awareness of doing so.  Small children comply with any number of grammatical rules without awareness even of their existence; and adults comply with rules concerning the pluperfect and subjunctive tenses, for example, without consciously knowing what those rules are.  We likewise understand language according to these same grammatical rules, again often without awareness of their existence.  Thus, a particular grammatical rule might strike us as impossibly esoteric, and yet shape our understanding of language every day.  The task of determining the ordinary meaning of a word or phrase, therefore, is sometimes one of excavating — and taking conscious account of — rules as to which our compliance is often unconscious....

Here, the government’s interpretation of § 3553(f)(1) is logically coherent. Again by way of background, when § 3553(f)(1) was first enacted in 1994, it provided that any defendant with “more than one criminal history point” was ineligible for safety-valve relief.  See 18 U.S.C. § 3553(f)(1) (1994).  Congress amended § 3553(f)(1) in the First Step Act of 2018 to read as it does now. Under the government’s interpretation — for a defendant to obtain relief from an otherwise mandatory-minimum sentence — the defendant must not have any of three disqualifying conditions in his criminal record: first, “more than 4 criminal history points,” itself a fourfold increase over the prior cap; second, a prior offense serious enough to add three points to his criminal record; and third, a prior 2-point “violent offense[.]”  Each of those conditions on its face is quite plausibly an independent ground to deny a defendant the extraordinary relief afforded by the safety valve — which means this reading is logically coherent.

The same is not true of Haynes’s interpretation, which would require that all these conditions be present for a defendant to be ineligible for safety-valve relief. Consider, for example, a defendant with 25 criminal history points, generated in part by six convictions for assault with a deadly weapon and six convictions for domestic assault.  (Both can be two-point violent offenses.  See, e.g., United States v. Delgado-Hernandez, 646 F.3d 562, 564 (8th Cir. 2011).)  Under Haynes’s interpretation, this defendant would qualify for safety-valve relief because of the fortuity that his criminal record lacks “a prior 3-point offense[.]” 18 U.S.C. § 3553(f)(1)(B).  Or consider an incorrigible recidivist with, say, 24 criminal-history points, comprising a half-dozen convictions for robbery and two convictions for possession of explosives with intent to terrorize. (Both are often three-point offenses.  See, e.g., United States v. Henderson, 209 F.3d 614, 616 (6th Cir. 2000); United States v. Priest, 447 F. App’x 682, 684 (6th Cir. 2011).)  This defendant too would be eligible for safety-valve relief, for want of a prior two-point violent offense. Results like these appear arbitrary enough to be implausible — which makes Haynes’s interpretation akin to an interpretation of beer-and-wine in the joint sense rather than the distributive one.  Haynes does offer a thoughtful response: namely that the district court serves as a gatekeeper in cases where § 3553(f)(1) generates results as bizarre as these.  But an ordinary reader would expect that § 3553(f)(1) itself would serve as a gatekeeper — and not an arbitrary one.  That indeed is the whole point of the provision.  The government’s reading of § 3553(f)(1) is therefore better than Haynes’s reading.

I believe that we now have the Fifth, Sixth and Seventh Circuits adopting the government's approach to the new statutory safety valve, and the Ninth and Eleventh Circuits on the defendants' side.  It is now seemingly only a question of when, rather than if, the Supreme Court takes up this issue and tells us which meaning of "and" is to be applied in this context.

Looking forward to seeing work of new Plea Bargaining Institute

Because trials get so much attention, most folks likley do not realize that more than 90% of criminal cases are resolved through pleas. And though most persons working in the criminal justice system know that most cases are resolved through pleas, there is still precious little really known about plea bargaining.  Consequently, I am quite excited by the announcement of new organization to study pleas, detailed in this news release headlined "Plea Bargaining Institute launched to reform plea bargaining practices in the US and internationally."  Here are the basics:

Fair Trials has partnered with Belmont University College of Law Professor Lucian E. Dervan to launch the Plea Bargaining Institute (PBI).... PBI is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space. PBI will create an environment for the sharing of knowledge and research and for collaboration related to the reform of global plea bargaining practices.

In the US, 95% or more of criminal cases are resolved through a plea of guilty. When someone pleads guilty they waive their right to a trial, something guaranteed by the U.S. Constitution. While a plea bargain may offer advantages, such as a more lenient sentence, plea bargaining often involves coercive incentives that negatively impacts all defendants’ right to trial. Research indicates that these incentives can be so coercive that even innocent defendants plead guilty....

PBI will create opportunities for dialogue that will inspire new and innovative research and analysis, empowering those working to reform plea bargaining to more effectively shape laws, change policy, and transform practice in the United States and internationally. PBI will also work to limit the use of coercive plea bargaining and reform the practice as a whole by engaging in training to instigate sustained alternatives....

PBI will focus on the following initiatives as it begins to create a global intellectual home for plea bargaining research:

• Summaries of research and case law developments provided in a searchable online format and in annual reports to make these materials more accessible for use by academics across various fields, policymakers, advocacy organizations and practitioners.
• Working groups for academics, policymakers, advocacy organizations and practitioners to share knowledge and create opportunities for dialogue and collaboration.
• An annual symposium at Belmont University College of Law in Nashville, Tennessee to establish which new areas of research are necessary to bring attention to and reform the plea bargaining system both in the US and around the world.
• As PBI grows, the project will expand its reach, including providing education and outreach.

Visit the PBI website to find out more and sign up for updates.  Please be aware that this website is under development, the full site will launch in early 2023.