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March 5, 2022

New Federal Sentencing Reporter double issue explores "Financial Sanctions in Sentencing and Corrections"

I am very pleased to now be able to spotlight the newest Federal Sentencing Reporter issue, which is actually a special double issue devoted to the topic "Financial Sanctions in Sentencing and Corrections: Critical Issues, Innovations, and Opportunities." This amazing issue has nearly two dozen article authored by more than three dozen leading academics and researchers. 

Professors Jordan Hyatt and Nathan Link deserve worlds of credit for putting this amazing issue together, and their "Editors’ Observations"  which introduces the issue is titled "The Cost of Financial Sanctions in Sentencing and Corrections: Avenues for Research, Policy, and Practice." Here is its abstract:  

Financial and monetary obligations, a class of sanctions that includes fines, restitution, and a range of fees, are increasingly recognized as playing a significant role in the operation of the justice system, the lives of the people against whom they are levied, and their communities.  While some financial sanctions play a role in the tailoring of a punishment to the particular individual and the offenses they have been convicted of, others lack this grounding in ideology and serve a more pragmatic- and potentially revenue-driven-goal.  These observations reflect on the current state of research and policy regarding financial sanctions and seek to identify meaningful gaps in the current knowledge base as a foundation for future inquiry.

I highly recommend the full double issue.

March 5, 2022 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

"Algorithm v. Algorithm"

286-2869560_spy-vs-spy-clipart-2-by-thomas-white-spy-black-spyThe title of this post is the title of this new Duke Law Journal article authored by Cary Coglianese and Alicia Lai. Though not discussing sentencing at length, regular readers know of the many ways the algorithm debate has purchase for the criminal justice system. (In addition, the title of the article reminded me of a cartoon from my youth noted here.) Here is the abstract:

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias.  A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making.  The human brain operates algorithmically through complex neural networks.  And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes.

Yet these human algorithms undeniably fail and are far from transparent.  On an individual level, human decision-making suffers from memory limitations, fatigue, cognitive biases, and racial prejudices, among other problems. On an organizational level, humans succumb to groupthink and free riding, along with other collective dysfunctionalities. As a result, human decisions will in some cases prove far more problematic than their digital counterparts.  Digital algorithms, such as machine learning, can improve governmental performance by facilitating outcomes that are more accurate, timely, and consistent. 

Still, when deciding whether to deploy digital algorithms to perform tasks currently completed by humans, public officials should proceed with care on a case-by-case basis.  They should consider both whether a particular use would satisfy the basic preconditions for successful machine learning and whether it would in fact lead to demonstrable improvements over the status quo.  The question about the future of public administration is not whether digital algorithms are perfect.  Rather, it is a question about what will work better: human algorithms or digital ones.

March 5, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

March 4, 2022

Voting 6-3, SCOTUS reinstates vacated death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

The Supreme Court this morning handed down its ruling in US v. Tsarnaev, No. 20-443 (S. Ct. March 4, 2022) (available here).  When the US Supreme Court back in March 2021 decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, the smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looked even smarter after the Supreme Court oral argument in October 2021 which revealed a predictable ideological split and strongly suggested a majority of Justices were inclined to reinstate Tsarnaev's death sentence.  Here is how Justice Thomas's opinion for the Court gets started:

On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon.  The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds.  Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle.  Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted.

A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse.

Justice Barrett authored a concurrence joined by Justice Gorsuch which starts this way:

In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.

I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place.

Justice Breyer authored the sole dissent, which was joined by Justice Sotomayor and mostly by Justice Kagan.  It starts this way:

During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings.  Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership.  In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence.  The Court of Appeals held that the District Court abused its discretion by doing so. 968 F. 3d 24, 73 (CA1 2020).

This Court now reverses the Court of Appeals.  In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.

March 4, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (35)

March 3, 2022

Lots of remarkable new CCRC posts highlighting "The Many Roads From Reentry to Reintegration"

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and an array of recent postings at CCRC captures all the incredible content connected to its latest publication of a national report surveying various legal mechanisms for restoring rights titled "The Many Roads to Reintegration."   Today's post links to the main publication and sets the context:

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.” Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

In addition, over the last couple weeks, CCRC has been highlight parts of this report though these individual postings:

Expungement, Sealing & Set-Aside of Convictions: A National Survey

Fair Chance Employment and Occupational Licensure: A National Survey

Executive Pardon: A National Survey

Judicial Diversion and Deferred Adjudication: A National Survey

March 3, 2022 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Prison Policy Initiative releases "new toolkit for advocates working to end mass incarceration"

Regular readers are familiar with my regular postings about the great work by Prison Policy Initiative on many topics related to prison policies and broader criminal justice practices. This is another such post flagging this PPI post noting its new "toolkit" sharing tips and lessons "learned over two decades of using data, visuals, and narratives to expose the harms of mass incarceration."  Here is how the post starts with links from the original:

we’re launching our new Advocacy Toolkit, a collection of guides and training materials that advocates can use to strengthen their campaigns to end mass incarceration.  The toolkit builds on lessons we’ve learned from our two decades of work to improve our criminal legal system. It provides skills-based guides on accessing public recordssecuring and organizing data, crafting persuasive narratives, and creating impactful visuals. It also includes issue-based guides on protecting in-person visits in prisons and jails, opposing jail expansion, and ending prison gerrymandering. We plan to add additional resources in the future.

Our new advocacy department created this toolkit as part of our expanded effort to support the people and groups on the ground doing the hard work to end mass incarceration.

While most advocacy departments organize campaigns, mobilize volunteers, and pressure decision-makers for change, ours is a bit different. We’re not looking to replicate the amazing work that thousands of people and hundreds of organizations are already doing to reform the criminal legal system. Instead, as a research organization known for using data visualizations and easy-to-understand narratives, our advocacy work aims to help these organizations leverage our expertise to strengthen their campaigns. 

March 3, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

March 2, 2022

Rounding up some reviews of SCOTUS argument in appeals by doctors convicted of opioid drug dealing

As previewed in this prior post, the Supreme Court heard oral argument in two cases on Tuesday morning, Ruan v. United States and Kahn v. United States, which explored the proper legal standards when the federal government looks to prosecute doctors as drug dealers.  I have a chance to listen to part of the argument, and it was both fascinating and frustrating for all sorts of reasons — e.g., the regular use of speeding laws as a hypothetical to explore mens rea standards for a statute in which Congress expressly requires a person to act "knowingly or intentionally" struck me as deeply misguided.  The transcript is available here, and here is a round-up of some review of the argument:

From the AP, "Justices seem to favor docs convicted in pain pill schemes"

From the Courthouse News Service, "Justices grapple with drug charges for pill-mill doctors"

From The Hill, "Supreme Court grapples with drug-dealing convictions for opioid prescribers"

From Reuters, "U.S. Supreme Court mulls 'pill mill' doctors' opioid convictions"

From SCOTUSblog, "In opioids “pill mill” case, justices grapple with physician intent"

From the portion of the oral argument that I was able to listed to, I came away with a sense that the doctor defendants have a reasonable chance of prevailing.  

March 2, 2022 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Will the US Supreme Court be interested in any issues being pressed by Charleston church shooter Dylann Roof?

The question in the title of this post was prompted by this new AP article headlined "Dylann Roof takes church shooting appeal to US Supreme Court."  Here are excerpts:

Attorneys for convicted Charleston church shooter Dylann Roof have asked the U.S. Supreme Court to decide how to handle disagreements over mental illness-related evidence between capital defendants and their attorneys, an issue that has played a role throughout his case over the 2015 racist slayings of nine members of a Black South Carolina congregation.

When a capital defendant who has been ruled competent to stand trial and his attorneys “disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?” Roof’s appellate team wrote in their petition, filed late last month with the high court.  Justices’ consideration is “needed to resolve a deep divide among the lower courts over who — client or lawyer — gets to decide whether mitigation evidence will be introduced at a capital penalty hearing.”

Roof’s self-representation and desire to block any evidence potentially portraying him as mentally ill — even if it could have helped him avoid the death penalty — has been a constant part of his case.  During the sentencing phase of his death penalty trial, Roof fired his legal team and opted to represent himself.  This move, his appellate attorneys have written, successfully prevented jurors from hearing evidence about his mental health, “under the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the public record.”

Roof made his decision, his team argued in the petition, “after the district court told him that counsel could introduce evidence depicting him as mentally ill over his objection.” But there is a disconnect, his attorneys argued, between how such cases have been handled in the 4th Circuit versus other jurisdictions, where “the vast majority of state and federal courts hold otherwise, leaving this deeply personal choice to a defendant.”

Notably, this AP article is only focused on one of three questions presented in Roof's recently filed cert petition. Here are all there issues set forth in this document:

1. When a competent capital defendant and his counsel disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?

2. Does the Commerce Clause authorize Congress to regulate an intrastate, noneconomic, violent offense based solely on the defendant’s pre-offense uses of interstate highways, GPS navigation, the Internet, and the telephone?

3. Should federal courts assess legislation enacted under the Thirteenth Amendment using the same tests that apply to legislation enacted under the Fourteenth and Fifteenth Amendments, where the three Reconstruction Amendments share substantively-identical enforcement provisions?

A few of many prior related posts:

March 2, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

March 1, 2022

Why is getting the EQUAL Act through the US Senate proving so challenging?

In this post six weeks ago on MLK day, I asked "How about passing the EQUAL Act so we can be 'free at last' from the crack/powder sentencing disparity?".  I noted in this prior post that the Senate version of the EQUAL Act has garnered seven notable and diverse GOP Senators as co-sponsors, and that this comes after last Fall the Act was passed by the US House by a vote of 361-66 with a majority of GOP Representative voting in favor.  These matters are on my mind particularly today after seeing this new DOJ press release headed "Readout of Justice Department Leadership Meeting with FAMM."  Here is an excerpt (with my emphasis added):

The meeting focused on the positive real-world impact of the finalization of the First Step Act Time Credit Rule, and the recent memorandum by the Office of Legal Counsel (OLC) concerning home confinement, as well as the need for Congress to pass the EQUAL Act.  The department has strongly urged Congress to pass the EQUAL ACT, which would reduce the disparity between crack cocaine and powder cocaine sentences from 18:1 to 1:1.

The Attorney General emphasized that meetings like these are “vitally important” to help department leadership understand how its “policies on paper affect people and their communities.”    During her remarks, Deputy Attorney General Monaco spoke about the importance of implementing the First Step Act and the Time Credit Rule and praised the work of FAMM. She noted that “as of this month, thousands of people are returning to their communities having put in the work to do so.”  

In Associate Attorney General Gupta’s opening remarks, she reiterated the importance of hearing from individuals directly impacted by the criminal justice system and shared that the department provided written testimony to the Senate Judiciary Committee in support of the EQUAL Act in June 2021, saying, “the current sentencing differential between crack and powder cocaine is not based in evidence and yet has caused significant harm in particular to communities of color.  It’s past time to correct this.”

I strongly agree that it is long past time to fix the crack/powder disparity, and every day matters: on average, every single workday, about 5 people — 4 whom are typically black and the other who is most likely Latino — are sentenced based on unjust crack sentencing rules in federal court.  Consequently, I continue to be deeply troubled that, nearly six months after the US House overwhelmingly voted with majorities in both parties in pass a bill to equalize crack and powder penalties, this bipartisan bill remains stuck in neutral in the US Senate.  Sigh.

A few related posts on the EQUAL Act:

March 1, 2022 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Will Prez Biden say anything about any criminal justice matters during his first State of the Union address tonight?

As is this blog's focus, I tend to focus most of my attention during presidential State of the Union addresses on whether the President focuses any attention on criminal justice issues.  More often than not over the nearly 20 years of this blog, I come away disappointed (but not especially surprised) that no mention gets made of the issues that are central to this blog. 

But, providing a notable reminder of the different world we lived in not all long ago, it may at this moment be worth recalling that Prez Trump in SotU 2018 talked about "reforming our prisons" and need to "get much tougher on drug dealers" and in SotU 2019 gave considerable attention to criminal justice reform after having just signed the FIRST STEP Act.

Circa early 2022, with a war on-going in Europe and and a pandemic and economic worries still very fresh at home, I would be quite surprised if any criminal justice reform issues get serious mention tonight.  That said, this is technically the first SotU since George Floyd's murder touched off nationwide protests about police practices, and we still appear to be in the midst of an increase in murders in many parts of the country and in the midst of an increase in public concerns about crime more generally.  In addition, I do expect Prez Biden to say many good things about his new SCOTUS nominee, Judge Ketanji Brown Jackson, and that might necessarily include comments about he rich criminal justice professional background.

So, dear readers, do you think Prez Biden will say anything about criminal justice matters tonight?  Do you think he should and if so, what should he say?

March 1, 2022 in Who Sentences | Permalink | Comments (5)

February 28, 2022

"The New Due Process: Fairness in a Fee-Driven State"

The title of this post is the title of this article recently posted to SSRN authored by Glenn Harlan Reynolds and Penny White.  Here is its abstract:

Many parts of the criminal justice system are funded by revenue from "users" -- i.e., the accused, in the form of fines, fees, and forfeitures.  Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, we argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function.  Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest and conviction.

February 28, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Previewing the notable criminal drug prosecution cases before SCOTUS

Tomorrow morning the Supreme Court hears oral argument in a couple of the relatively few criminal cases it will be addressing this Term.  Two cases are consolidated for one argument, Ruan v. United States and Kahn v. United States, and here is the question presented:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

The setting for SCOTUS to be addressing this question is quite interesting and still timely, and a number of media outlets have these helpful previews:

From JD Supra, "Pain Management or Pill Mill? Supreme Court to Weigh in on Standards for Prosecutions of Practitioners Prescribing Narcotics"

From Law360, "DOJ Has Few Allies, Many Foes In High Court Opioid Brawl"

From the New York Times, "Were These Doctors Treating Pain or Dealing Drugs?: The Supreme Court will hear from two convicted pill mill doctors in cases that could have significant implications for physicians’ latitude to prescribe addictive painkillers."

From SCOTUSblog, "Amid overdose crisis, court will weigh physician intent in “pill mill” prosecutions and more under the Controlled Substances Act"

From STAT, "Fight over opioid prescribing — and when it turns criminal — heads to Supreme Court"

February 28, 2022 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Another SCOTUS order list with a dissent by Justice Sotomayor as only criminal justice news

With the nomination of Judge Ketanji Brown Jackson to be the next Justice and with the current Justices expected to hand down some new opinions soon, there may be some SCOTUS criminal justice intrigue in the coming week.  But the SCOTUS week started today with this 19-page order list that has very little for criminal justice fans save a lengthy solo dissent from Justice Sotomayor.

Specifically, after all the cert denials and a statement in a religious liberty case from four Justices, Justice Sotomayor has a dissent from the denial of certiorari in Holcombe v. Florida, No. 21–53, which starts this way:

An attorney jointly represented four codefendants in a criminal case.  As trial neared, two of the defendants accepted plea deals and agreed to testify against the other two: James Dale Holcombe, the petitioner here, and his father, Dale Chester Holcombe.  This created a conflict of interest that even the prosecutor deemed nonwaivable.  Nevertheless, the trial court refused defense counsel’s offer to withdraw from representing the cooperating codefendants and neglected to conduct a detailed inquiry into the nature and extent of the conflict.  The case went to trial, and Holcombe’s attorney cross-examined his two cooperating clients, whose sentences depended on the quality of the testimony they provided against Holcombe. Holcombe was convicted, and the Florida Court of Appeal affirmed.  Because this Court’s precedents require vacating Holcombe’s conviction, I would summarily reverse.

I flag at the beginning of this post the nomination of Judge Ketanji Brown Jackson because I think it quite possible, perhaps even likely, that a Justice Jackson might be somewhat more inclined that some of the other Justices to join on to Justice Sotomayor's frequent separate statements in criminal cases.

February 28, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)