Sentencing Law and Policy

"The Ex Post Facto Clause: Its History and Role in a Punitive Society"

The title of this post is the title of this new SSRN entry that is also the title of this new book authored by Wayne Logan.  Here is the SSRN abstract:

The Ex Post Facto Clause, one of the few civil liberty protections found in the body of the U.S. Constitution, reflects the Framers' acute concern over the tendency of legislatures to enact burdensome retroactive laws targeting unpopular individuals.  Over time, a broad array of Americans has invoked the protective cloak of the Clause, including Confederate sympathizers in the late 1860s; immigrants in the early 1900s; Communist Party members in the 1950s; and, since the 1990s, convicted sex offenders.  Although the Supreme Court enforced the Clause with vigor during much of the nation's history, of late the justices have been less than zealous defenders of the security it was intended to provide.  Even more problematic, their decisions have come amid major changes in the nation's social, political, and institutional life that have made the protections of the Ex Post Facto Clause all the more important.

The "Ex Post Facto Clause: Its History and Role in a Punitive Society" begins with a survey of the Framing Era history of the Clause and then examines and critiques the Supreme Court’s extensive case law interpreting and applying it.  The final chapters provide a blueprint for how the Clause can be reinvigorated to play a more robust role in guarding against the penal populism besetting modern American legislatures.

As the Framers of the Constitution were well aware, there always have been, and there always will be, disdained individuals to serve as politically attractive targets of burdensome retroactive laws.  Guided by this reality, the book undertakes a task of historic recovery with the ultimate goal of restoring the Ex Post Facto Clause to its intended constitutional role as a check on legislative excess, so needed in today’s unforgiving and harshly punitive political environment.

A Good Friday update on the relatively good homicide news from cities to start 2023

A few months ago, in this post just a few weeks into 2023, I flagged the AH Datalytics collection of homicide data from police reports in nearly 100 big cities.  I noted in that post that, after significant increases in homicides throughout the US in 2020 and 2021, the dashboard showed that nearly two-thirds of big cities reported homicide declines in 2022 relative to 2021 and that nationwide murders in large cities were cumulatively down nearly 5% for 2022.  

Of course, these reported homicide declines for 2022 followed particularly high homicide rates in many locales in 2021, and we still have a way to go to get back to pre-pandemic homicide levels.  But I found the nationwide city homicide data to be encouraging for 2022, the now we have additional data suggesting the positive recent homicide trends are continuing and perhaps even accelerating across cities.  Specifically, according to this AH Datalytics webpage which is now updated with early 2023 data from police reports, there is so far cumulative 10% decline in murders across the nation's cities for roughly the first quarter of 2023. 

And, as I have done for some prior recent posts on homicide rates, this morning I also took a closer look at a few updated police reports to see about 2023 homicide trends in our biggest US cities: 

Chicago homicides down 14% in 2022, and down another 15% in first three months of 2023

Houston homicides down 9% in 2022, and down another 34% in first two months of 2023

Los Angeles homicides down 5% in 2022, and down another 26% in first three months of 2023

New York City homicides down 11% in 2022, and down another 11% in first three+ months of 2023

Philadelphia homicides down 9% in 2022, and down another 14% in first three months of 2023

As I have said before, these homicide data from cities are likely not fully representative of what may be going on with homicides nationwide, and it seems that the homicide data from the month of March in the biggest cities are not quite as positive as they were to start the year.  Moreover, homicide trends are always unpredictable and data can change in lots of ways.   Still, these new encouraging nationwide homicide data from the AH Datalytics webpage continue to reinforce my hope that the surging number of homicides in just about every part of the US through 2020 and 2021 were mostly a pandemic era phenomenon and that lower homicide rates may soon be more common. 

During remarkable criminal justice week, rounding up a lot of notable (Trump-free) criminal justice stories

This first criminal indictment of a former President made this week historic for the whole nation, and the new US Sentencing Commission's guideline amendment made this week quite consequential for the federal justice system.  But there were lots and lots of other criminal justice stories worth noting this week, and here are just a few that I wish I had more time to cover more fully:

From AL.com, "How many Alabama prison inmates are there for violent crimes? State and feds disagree"

From the Detroit Free Press, "Crumbley parents banned from son's [Miller] hearing: They just want to silence him, prosecutor says"

From Marijuana Moment, "Bipartisan Senators File Bills To Reduce Mandatory Minimums For Federal Drug Crimes And Limit Pre-Trial Detention"

From The Marshall Project, "How Criminal Records Hold Back Millions of People"

From the New York Times, "Here’s What Happens as the Era of Mass Incarceration Winds Down"

From Reuters, "Malaysia scraps mandatory death penalty, natural-life prison terms"

From Stateline, "More States Allow Residents With Felony Convictions to Vote"

From the Washington Post, "‘War on drugs’ deja vu: Fentanyl overdoses spur states to seek tougher laws"

New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction

As reported in this local article, Oklahoma "Attorney General Gentner Drummond is releasing the final report from Independent Counsel on the same day he has filed a motion to vacate the conviction of death row inmate Richard Glossip." Here is more:

The motion was filed with the Oklahoma Court of Criminal Appeals (OCCA) three days after the Independent Counsel Rex Duncan submitted his findings from the comprehensive review ordered by Drummond. While the report did not declare Glossip is innocent, it documented multiple instances of error that cast doubt on the conviction, even though many of these issues have been previously addressed by the OCCA.

“The State has reached the difficult conclusion that justice requires setting aside Glossip’s conviction and remanding the case to the district court,” states the April 6 motion. Drummond said his final decision in this matter is based on a careful consideration of the law and what he deemed is in the best interests of justice....

Glossip has been on Oklahoma’s death row for nearly 25 years. He was initially charged with accessory to murder on Jan. 15, 1997, after the murder of his boss, Barry Van Treese. A co-worker of Glossip’s confessed to beating Van Treese to death in an Oklahoma City motel room. As part of a plea agreement to avoid the death penalty, the co-worker testified that Glossip offered to pay him for the killing.

As a result, Glossip was charged and eventually convicted of first-degree murder in 1998. The co-worker, who was the prosecution’s key witness against Glossip and the murderer of Van Treese, was convicted and received a sentence of life without the possibility of parole.

The Oklahoma Court of Criminal Appeals later overturned Glossip’s conviction for ineffective assistance of counsel. He was convicted and sentenced to death again at a 2004 retrial.

With the Glossip case long dogged by doubt and controversy, Drummond sought answers shortly after taking office. He quickly learned that the State had long withheld a box of materials from Glossip’s defense team. Drummond promptly provided access to those materials, referred to as “Box 8,” and appointed an Independent Counsel to conduct a comprehensive review of the case. Box 8, and the findings from that review, formed much of the basis for the State’s motion to vacate Glossip’s conviction and remand to the district court....

The motion can be read here.

The Independent Counsel report can be read here.

As many readers of this blog likely know, Richard Glossip's case has long been in the headline not only because of his wrongful concviction claims, but also because he was the capital defendants whose Eighth Amendment challenges to certain lethal injection execution protocols were rebuffed in the 2015 Supreme Court ruling in Glossip v. Gross.

Has the US Sentencing Commission now "overruled" circuit decisions saying changes in law cannot provide a basis for 3582(c)(1)(A) sentence reduction?

Perhaps the highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission yesterday (basics here) concerns the major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)."  This "policy statement" structures the availability of what are often called "compassionate release" motions that, after the FIRST STEP Act, can be brought to sentencing courts directly by federal prisoners.  Notably, when introducting the Commission's amendments to § 1B1.13, USSC Chair Reeves stressed in his statement that the term compassionate release "is a 'misnomer'" because § 3582(c)(1)(A) sets forth a more general "sentence-reducing tool" authorizing judges "to modify sentences whenever new 'extraordinary and compelling' reasons arise."

This Reuters article (which uses the compassionate release "misnomer") provide a brief account of the new amendment to guideline § 1B1.13:

The U.S. Sentencing Commission approved new guidelines on Wednesday that will expand federal inmates' ability to qualify for compassionate release from prison.  The new policy, approved in a vote of 4-3, was part of a broader package of amendments, and represent the most sweeping criminal justice reforms the commission has enacted in more than four years....

The new compassionate release guidelines approved on Wednesday expanded the criteria for what can qualify as "extraordinary and compelling reasons" to grant compassionate release, and it will give judges more discretion to determine when a sentence reduction is warranted.  Among the new categories that could make an inmate eligible for compassionate release is if he or she becomes the victim of sexual assault by a corrections officer.

Three members of the panel opposed the final policy, saying they disagreed with a provision that could allow judges to grant compassionate release to inmates if changes to federal sentencing laws renders their prison term inequitable. The policy "makes a systemic, structural change without congressional authorization," commission member Candice Wong said.

Though there are lots of new and important elements to the new § 1B1.13, one particular issue that has generated a particularly interesting debate in the circuit courts (and before the Commission) is whether a district judge can rely on a "change in the law" to grant a 3582(c)(1)(A) sentencing reduction.  This question has deeply divided the circuits; as discussed here, the Sixth Circuit a few months ago rendered a big divided en banc ruling in US v. McCall which held, as a matter of statutory interpretation, "that nonretroactive changes in sentencing law cannot be 'extraordinary and compelling reasons' that warrant relief" pursuant to 3582(c)(1)(A). 

But now the US Sentencing Commission, which Congress in 28 U.S.C. § 994(t) expressly gave the responisbility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," has expressly decided via its new amendments to § 1B1.13 that a "change in the law" legally can and sometimes should be the basis for a 3582(c)(1)(A) sentencing reduction.  Specifically, here is the interesting policy statement provision on this issue in the new guideline (with emphasis added):

(6) UNUSUALLY LONG SENTENCES.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

In other words, the US Sentencing Commission has decided, contra to the position of the Sixth Circuit and some other circuits, that a change in law can serve as an extraordinary and compelling reason for sentence reduction, though the Commission here limits such a "law-change" reason to cases in which a defendant has already served "at least 10 years" of an "unusually long sentence" and the law change "would produce a gross disparity" in sentencing outcomes. 

Though one might well debate the wisdom and reach of how the new guideline seeks to limit when "a change in the law" can provide an extraordinary and compelling reason for sentence reduction, it is beyond debate that the US Sentencing Commission, the expert agency tasked expressly by Congress to "describe what should be considered" reasons for a 3582(c)(1)(A) sentence reduction, has now explicitly decided that at least sometimes a "change in law" CAN statutorily be a proper basis for a reduction under the statute.  In this way, I answer the question in the title of this post as "yes": the US Sentencing Commission's promulagation of this new § 1B1.13 provision serves to functionally "overrule" any and all court precedents that nonretroactive changes in law cannot be the basis for a statutory sentence reduction under 18 U.S.C § 3582(c)(1)(A).

UPDATE:  Thanks to some feedback from a number of helpful readers, I realized it would be useful to note that some circuits speaking to this issue expressly recognized that any court accounting of "extraordinary and compelling reason" would be only a gap-filler until the Commission amended § 1B1.13 and the Justice Department has also said as much when opposing Supreme Court review of the circuit split on this issue.  Professor Erika Zunkel's testimony to the USSC at pp. 9-13 speaks effectively to these issues at great and effective length for anyone interested in a deeper dive.

"Prosecutors as punishers: A case study of Trump-era practices"

The title of this post is the title of this notable new article authored by Mona Lynch for the journal Punishment & Society that is now available online. Here is its abstract:

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S.  This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes.  Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts.

Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches.  Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools.  My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

US Sentencing Commission promulgates numerous consequential new guideline amendments (while defering resolution of other big issues), with big division on compassionate release

As USSC Chair Judge Carlton Reeves stressed in this lengthy and moving openning statement, the US Sentencing "Commission has done an extraordinary amount of work over the last six months."  That work in part culminated today in the promulgation of numerous consequential new guideline amendments, though the USSC also defering resolution of other big issues.  Acquitted conduct sentencing (recently flagged here) is one of the big topics that was deferred for future amendment cycles.  But there were an array of other critical issues tackled through a total of eleven intricate guideline amendments. 

Notably, the new bipartisan fully loaded Commission voted unanimously in favor of ten of the eleven intricate guideline amendments that were promulgated today.  But arguably the most consequential of the amendments to the federal sentencing guidelines — namely the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)" — divided the new Commissioners.  Specifically, the four Democratic appointees to the Commission voted to promulgate an amendment that provides federal judges with relatively broad authority to reduce sentences pursuant to 3582(c)(1)(A), whereas the three Republican appointees to the Commission voted againt this amendment.  

As federal sentencing gurus know, none of these amendments will formally become guidelines law until November 1, 2023.  And, until that time, Congress has authority to enact legislation to reject any or all of these amendments in order to prevent them from becoming law.  The ten amendments that received unanimous support from all the new Commissioners seem highly unlikley to be subject to override by Congress.  But given the divided vote over the commpassionate release guideline, as well as all the important issues that this guideline touches upon, I am  quite uncertain about whether Congress might seriously seek to weigh in on this topic in the coming months.  (I am nearly certain that some notable members of Congress will express some criticism of the proposed amendment and that some notable members of Congress will express support for the proposed amendment.)

I plan to do some separate posts on some of the individual amendnments (and on some of the non-amendments and some of the speeches by various members of the Commission) in coming days and weeks.  But before concluding this post, I think it worth flagging the reality that, even though none of these amendments can become formal law until November 1, 2023, federal judges certainly can — and I generally think should — consider the wisdom reflected in these new proposed guidelines right away.  Whether the topic is compassionate release or firearms  or criminal history or fake pills or other matters addressed by these amendments, federal judges currently have lots of discretion to consider an array of factors at sentencing and the grave responsibility of trying to exercise their sentencing discretion wisely.  The Commission is the expert sentencing policy-making body in the federal system, and its proposals sensibly merit at least thoughtful consideration by sentencing judges even before they become law.

UPDATE:  The US Sentencing Commission now have this official press release on its webstite with this extended heading: "'Back In Business' U.S. Sentencing Commission Acts To Make Communities Safer & Stronger: New Policies Increase First Steps Toward Second Chances, Take Targeted Action On Gun Trafficking And Fentanyl, And Expand Alternatives To Incarceration." Here is most of the text of the press release:

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted today to promulgate amendments to the federal sentencing guidelines. “The Sentencing Commission is back in business,” said Chair Carlton W. Reeves. “Today, we are listening to Congress and the public by increasing first steps toward second chances, taking targeted action on gun trafficking and fentanyl, and expanding alternatives to incarceration. The policies issued today are common-sense ideas that will increase public safety while strengthening our communities.” Watch public meeting. 

During the pandemic, federal judges saved lives using their authority in 18 U.S.C. § 3582(c)(1)(A) to reduce sentences for incarcerated people facing “extraordinary and compelling” circumstances like certain risks posed by COVID-19.  Responding to the First Step Act’s directive to increase the use and transparency of this tool, the Commission updated its guidelines to reflect lessons learned since the pandemic, ensure judges can continue to take first steps toward second chances for those who deserve them, and reunite families through appropriate reentry.  “Judges are in the best position to decide if someone deserves to have the length of their sentence revisited,” said Chair Reeves. “This policy trusts courts to continue doing what is right.”

Since the Commission last had a quorum, communities across the country have struggled with the ills of gun trafficking and fentanyl.  Congress directed the Commission to act on gun trafficking through the Bipartisan Safer Communities Act of 2022, while the Drug Enforcement Administration asked the Commission to evaluate possible action on fentanyl.  In response, the Commission voted to take targeted action on both issues. “The problems of gun trafficking and drug overdoses demand a comprehensive response,” said Vice Chair Claire Murray. “I am proud to say the Commission is doing its part by ensuring we have proportional sentences for serious offenses.”

The Commission is also revising guidance to courts regarding people facing their first federal conviction.  Relying on data and extensive analysis about recidivism, the Commission is acting to maximize public safety and encourage consideration of alternatives to incarceration.  “Our new policies revise the sentencing guidelines based on empirical research and experience,” said Vice Chair Laura Mate.  “This careful, evidence-based approach will increase fairness in sentencing and keep our communities safe.”

Among the many other policies issued by the Commission are those that seek to address ghost guns, sexual abuse of incarcerated people by correctional employees, clarify acceptance of responsibility points for defendants, and implement criminal justice legislation passed by Congress.  “The policies issued today reflect the wide spectrum of views we received through public hearing testimony and tens of thousands of letters,” said Chair Reeves. “The policies issued today prove, beyond a doubt, that when you speak to the Commission, you will be heard.”

While the newly reconstituted Commission concludes its first policymaking cycle, there is more work to do. In the year to come, the Commissioners will continue to study a number of proposed policies, including those regarding how the guidelines treat acquitted conduct and the “categorical approach” to the career offender guideline. In the meantime, the Commission will send final amendments to Congress by May 1, 2023. If Congress does not act to disapprove the amendments, they will take effect on November 1, 2023. 

Notable recent new coverage of the not-so-new horrors of solitary confinement

Long-time readers know I have long bemaoned the enduring use and reliance on extreme solitary confinement in many penal instututions for decades.  Indeed, in some of my posts here and here from 2006 on this issue, during a time when constitutional litigation over lethal injection protocols was first getting revved up, I made suggested here and elsewhere that persons truly concerned about both human dignity and public safety ought to given even more attention to the tens of thousands of humans in Supermax facilities and subject to long periods of solitary confinement than to the far fewer humans on (often much nicer) death rows.

In part because it sometimes felt like shouting into the wind, I have not tended to blog all that much on this important topic.  But I am still quite pleased when I see persons with much bigger platforms giving new and renewed attention to solitary, and I am eager in my little platform to highlight coverage at HBO and the New York Times:

From John Oliver on Last Week Tonight with John Oliver, "Solitary Confinement":

 

From Adam Liptak at the NY Times, "How Long Without Outdoor Exercise Is Too Long for a Prisoner in Solitary?"

Just a few recent (of many) prior related posts:

• "The case against solitary confinement" 
• Might a challenge to extreme solitary confinement for over a quarter century reveal if any current Justices are truly textualists and originalists? 
• Latest "Time-in-Cell" report estimates that, as of July 2021, "between 41,000 and 48,000 people were held in isolation in U.S. prison cells" 
• "A Call to Reform Federal Solitary Confinement" 

Among many big amendment questions, will the new USSC promulgate new guidelines to limit acquitted conduct enhancements?

As flagged in this post a few weeks ago, we can expect the US Sentencing Commission to vote to promulgate its first set of new guidelines amendments in five years later today.  Specifically, the announcement here on the Commission's website notes that "a public meeting of the Commission was scheduled for Wednesday, April 5, 2023, at 2:00 p.m." and that the agenda will include a "Vote to Promulgate Proposed Amendments."  As I have explained before, and as detailed in some of the prior posts below, there has been significant debate about the significant draft proposed amendments that were released by the USSC earlier this year.  One of those possible amendments in newly discussed in this lengthy Bloomberg Law piece titled "Sentencing Commission to Vote on Handling of Acquitted Conduct."  Here are excerpts (with links from the original):

The US Sentencing Commission is expected on Wednesday to vote on an amendment that would eliminate acquitted conduct from the definition of relevant conduct for purposes of calculating the guidelines range.

Judges would still be able to consider acquitted conduct that was proven beyond a reasonable doubt or admitted by the defendant in plea proceedings or a colloquy.

The amendment has wide support from the defense bar, current and former federal judges, and three US Senators, although some say it won’t completely solve the problem.

Others, including the Victims Advisory Group, oppose the changes, arguing that courts need to be able to consider the full context of an offense. In its opposition, the Department of Justice emphasized the difficulty judges may have in determining what conduct they can or can’t consider.

In addition to perhaps addressing acquitted conduct, the Commission will also certainly put forward amendments concerning the grounds for compassionate release which will certainly impact many prisoners nationwide. A number of other possible amendments being considered by the Commission could also prove quite consequential. Interesting times.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments
• US Sentencing Commission posts over 1600 pages of public comment on proposed amendments 
• US Sentencing Commission schedules meeting for April 5, 2023, for promulgation of proposed guideline amendments 

Justice Department formally gives BOP discretion to decide who moved to home confinement during pandemic will be returned to federal prison

Pandemic-era readers are likely familiar with the long-running legal saga surrounding what I called the "home confinement cohort," those people released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act.  These folks seemed to be at risk of being sent back to prison, en masse, at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much.  But, later that same year, with some noew folks in charge of sorting out and executing the law, a new OLC 15-page opinion from Dec 2021 concluded that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." (See some of many prior posts concerning the "home confinement cohort" are linked below.)

Of course, back in 2021, the end of the pandemic still seemed far away.  But, thankfully, far away is here, at least legally:  Prez Biden intends to end the COVID national emergency and related health emergencies in mid-May.  In turn, the Justice Department today issued this official "final rule" concerning how to handle folks still serving sentences on home confinement.  Here is how the lengthy explanation of the "rule" starts:

The Coronavirus Aid, Relief, and Economic Security Act (‘‘CARES Act’’) authorizes the Director of the Bureau of Prisons (‘‘Director’’), during the covered emergency period and upon a finding by the Attorney General that emergency conditions resulting from the Coronavirus Disease 2019 (‘‘COVID– 19’’) pandemic materially affect the functioning of the Bureau of Prisons (‘‘Bureau’’ or ‘‘BOP’’), to lengthen the maximum amount of time for which a prisoner may be placed in home confinement. The Department of Justice (‘‘Department’’ or ‘‘DOJ’’) promulgates this final rule to affirm that the Director has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.

There are lots of interesting elements to the DOJ explanation of this rule, but I found this accoutning of the number of persons impacted by the CARES Act's authorization of expanded home confinement to be notable:

Since March 2020, the Bureau has significantly increased the number of inmates placed in home confinement under the CARES Act and other preexisting authorities.  Between March 26, 2020, and January 23, 2023, the Bureau placed in home confinement a total of 52,561 inmates.  The majority of those inmates have since completed their sentences; as of January 23, 2023, there were 5,597 inmates in home confinement.  According to the Bureau, 3,434 of these inmates were placed in home confinement pursuant to the CARES Act.

Here is some additional context from some of the press coverage of this official DOJ rule:

From Forbes, "End Of CARES Act Home Confinement Is Near For Many Federal Prisoners"

From Fox News, "Prisoners in home confinement due to COVID measures can stay there even after emergency ends, says DOJ"

From Reuters, "US rule to allow some inmates to stay home after COVID emergency lifts"

As detailed in toms of the posts linked below, data suggest a remarkably low rate of recidivism for those released into home confinement under the CARES Act.  In addition to hoping BOP will not return anyone to prison absent a good public safety reason for doing so, perhaps a range of federal officials and research can effectively investigate what helped make this program seemingly so successful.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there" 
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 
• With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? 

New Prison Policy Initiative briefing explores "the unmet needs of people on probation and parole"

The Prison Policy Initiative has this notable new briefing titled "Mortality, health, and poverty: the unmet needs of people on probation and parole." Authored by by Emily Widra and Alexi Jones, here is how it starts (with links from the original, but footnotes removed):

Research shows that people on probation and parole have high mortality rates: two and three times higher than the public at large. That certainly suggests that our community supervision systems are failing at their most important — and basic — function: ensuring people on probation and parole succeed in the community.

With a similar approach to our recent series regarding the needs of people incarcerated in state prisons, we did a deep dive into the extensive National Survey on Drug Use and Health (NSDUH).  The results of this survey, administered by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), provide key insights into these specific — and often unmet — needs faced by people under community supervision.  Because this survey asks respondents if they were on probation or parole in the past 12 months, this dataset comes closer than any other source to offering a recent, descriptive, nationally representative picture of the population on probation and parole.

The data that we uncovered — and the analyses of this same dataset by other researchers discussed throughout — reveal that people under community supervision have high rates of substance use and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality. Moreover, the data show that people on probation and parole experience high rates of chronic health conditions and disability, are extremely economically marginalized, and have family obligations that can interfere with the burdensome — often unnecessary — conditions of probation and parole.

"Senate Bill 288: Implications for the Criminal Justice System in Ohio"

The title of this post is the title of this notable new webinar scheduled for next week (April 12 starting at 12noon), which has been organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  Here is a bit of the backstory and the panel lineup:

Over the last decade, the Ohio General Assembly has expanded the eligibility criteria for record sealing on several occasions.  The passage of the criminal justice omnibus Senate Bill 288, signed into law by Governor DeWine in January 2023, continues this trend by further expanding eligibility and, for the first time ever, allowing for prosecutor-initiated record sealing on behalf of individuals with certain types of offenses.  Other long-fought-for reforms in SB 288 include, but are not limited to, expansion of expungement provisions, increasing the maximum amount of earned credit for persons in prison, and a host of other provisions modifying crimes and corrections law in Ohio.

Join the Drug Enforcement and Policy Center for a multi-panel event on Ohio Senate Bill 288 that will bring together criminal justice experts and advocates for a discussion of some of the key provisions of SB288 and their likely impact as well as the opportunities and challenges of government-initiated record sealing, and its likely adoption by Ohio prosecutors.

Panel 1: Understanding SB288: Key Provisions and Likely Impacts

noon - 1:10 p.m.

• Louis Tobin, Executive Director, Ohio Prosecuting Attorneys Association
• Senator Nathan Manning, Ohio 13th Senate District
• Alex Jones, Criminal Justice Counsel, Ohio Criminal Sentencing Commission
• Jocelyn Rosnick, Policy Director, ACLU of Ohio
• Kevin Werner, Policy Director, Ohio Justice & Policy Center
• Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center (moderator)
   

Panel 2: Prosecutor Initiated Record Sealing

1:15 - 2:30 p.m. 

• Mark Griffin, Law Director, City of Cleveland
• Tori Edwards, Legal Department Staff Attorney, Franklin County Municipal Court
• Pam Lattimore, Senior Director for Research Development, Division for Applied Justice Research,  RTI International
• Sara Andrews, Executive Director, Ohio Criminal Sentencing Commission (moderator)

More details and a simple registation form can be found at this link.

Could former Prez Trump's indictment have a salutary impact on how the far left views prosecutors and on how the far right views defendants?

I expect to mostly avoid blogging much about the criminal prosecution (or prosecutions) of former Prez Donald Trump unless and until sentencing issues arise, in part because there will be plenty of coverage in plenty of other legal spaces.  (Of course, as prosecutors and defense attorneys know well, in any criminal case that could be resolved through a plea, sentencing-related considerations should be on lawyers' minds even before an indictment.  But I surmise the prospects of a guilty plea by Trump to the charges he is now facing in New York are, at least right now, quite low.)

That all said, against the backdrop of former Prez Trump's indictment, I was struck by a passage in this new Washington Post op-ed by a 3L at Stanford Law School lamenting the polarization she see among classmates in her law school environment:

The far-left students have a dismissive shorthand for fellow students whose politics they consider not sufficiently progressive: “future prosecutors.”  The message is loud and clear — prosecutors are the bad guys.  But also: Be careful what you say.

I often think of one of my first-year professors, who was appalled by these students’ stigmatizing of the prosecutorial role.  He asked one: Given that prosecutors decide whether and what charges to bring against a defendant, isn’t it preferable for well-qualified people to fill the role?  Without missing a beat, the student responded: No, being a prosecutor is simply evil.

Two years later, students in evidence class are clearly aware of the stigma.  When two students are given a choice to explain from the perspective of a prosecutor or defense attorney how certain evidence should be entered into the record, the first student almost invariably opts for defense attorney; then the other student makes a joke or a comment signaling displeasure at being stuck with the role of prosecutor.  Just about the only time someone chooses to play prosecutor is for a murder or rape case.

For starters, I am quite pleased to report that I do not see such extreme polarization or demonization of prosecutors at The Ohio State University Moritz College of Law.  For many years, I have had students readily volunteer in my role plays as prosecutors and defense attorneys in a range of cases and settings.  And I regularly (and enthusiastically) advise any number of students who are eager to become prosecutors after they graduate.  I fear Stanford Law is not a complete outlier with the student dyanmics described in this op-ed, but I know these dynamics do not define all law schools.

And, ever eager to see silver linings in all kinds of clouds, this passage about far-left biases against prosecutors got me to thinking about how Trump's legal woes might reshape criminal justice valences on both the left and the right.  We have already see this playing out to some degree with the January 6th criminal defendants, who are getting visits and other form of support from GOP legislators and other far-right supporters.  In turn, we surely should not expect students at Stanford Law (or other far-left voices) to be calling Manhattan DA Alvin Bragg or any other prosecutor investigating former Prez Trump "simply evil" anytime soon.  The reshaping of far-left perceptions of prosecutors in this context may come not only from Trump investigations, but also from the eagerness of some far-right folks to be calling DA Bragg "evil."   

The WaPo op-ed concludes by expressing some hope that more law students will make more efforts in the classroom to advance the "thoughtful exchanging of views that is essential to the legal profession."   And I will conclude this post hoping that not everyone thinks I am crazy to hope that former Prez Trump's indictment might possibly reduce rather than increase a form of extremism that can harm law school and the legal profession more broadly.

Sentencing Project releases new fact sheet on "Incarcerated Women and Girls"

The Sentencing Project this morning released this new six-page fact sheet titled simply "Incarcerated Women and Girls."  The document is full of data and graphics highlighting aspects of the reality that "the rate of growth for female imprisonment has been twice as high as that of men since 1980."  I recommend the full document, and here is some of its text:

Between 1980 and 2021, the number of incarcerated women increased by more than 525%, rising from a total of 26,326 in 1980 to 168,449 in 2021. While 2020 saw a substantial downsizing due to the COVID-19 pandemic, this trend reversed with a 10% increase in 2021.

Though many more men are in prison than women, the rate of growth for female imprisonment has been twice as high as that of men since 1980. There are approximately 976,000 women under the supervision of the criminal justice system....

In 2021, the imprisonment rate for Black women (62 per 100,000) was 1.6 times the rate of imprisonment for white women (38 per 100,000). Latinx women were imprisoned at 1.3 times the rate of white women (49 vs. 38 per 100,000).... Between 2000 and 2021, the rate of imprisonment in state and federal prisons declined by 70% for Black women, while the rate of imprisonment for white women rose by 12%....

The rate at which women are incarcerated varies greatly from state to state. At the national level, 47 out of every 100,000 women were in prison in 2021. The state with the highest rate of female imprisonment is Idaho (127) and the state with the lowest incarceration rate of women is Massachusetts (6).

Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-five percent of women in prison have been convicted of a drug offense, compared to 12% of men in prison; 19% of incarcerated women have been convicted of a property crime, compared to 13% among incarcerated men. The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 25% in 2020.

Three Justices dissent from denial of cert in Louisiana capital case based on Brady issue

The Supreme Court issued this morning another order list with no new grants of certiorari and lots of cert denials.  One of those cert denials, in the Louisiana capital case of Brown v. Louisiana, generated a short dissent by Justice Jackson, which was joined by Justices Sotomayor and Kagan. Here are excerpts from the dissent:

The central question before this Court is whether the prosecution violated Brown’s due process rights by failing to disclose this confession [by Edge, a codefendant].  Brady v. Maryland, 373 U.S. 83 (1963).  Because the evidence was plainly “favorable” and “material” to Brown’s penalty phase, id., at 87, I would have granted certiorari and summarily reversed....

The Louisiana Supreme Court nevertheless held that Edge’s confession was not favorable to Brown because it did not specify who actually killed the victim, nor did it expressly state that Brown was “not present or not involved.” 347 So. 3d, at 836.  The requirement that the withheld evidence must speak to or rule out the defendant’s participation in order for it to be favorable is wholly foreign to our case law....

We have repeatedly reversed lower courts — and Louisiana courts, in particular — for similar refusals to enforce the Fourteenth Amendment’s mandate that favorable and material evidence in the government’s possession be disclosed to the defense before trial. See, e.g., Kyles, 514 U.S., at 422, 450–453; Smith, 565 U.S., at 76–77; Wearry, 577 U.S., at 392–394, 396.  This Court has decided not to grant Brown’s petition for certiorari, but that determination should in no way be construed as an endorsement of the lower court’s legal reasoning.  In my view, the Louisiana Supreme Court misinterpreted and misapplied our Brady jurisprudence in a manner that contravenes settled law.

"Death by Withdrawal"

The title of this post is the title of this notable new paper authored by Taleed El-Sabawi and now available via SSRN.  Here is its abstract:

No one deserves to die just because they use drugs.  Yet, policies and practices in jails and prisons around the country continue to facilitate the death, pain, and suffering of people who use drugs by refusing to properly screen and medically manage withdrawal for persons in their custody.  In Estelle v. Gamble, the Supreme Court established a constitutional right for incarcerated persons to receive adequate medical care.  Further, it prohibited the denial of medical care that caused "the unnecessary and wanton infliction of pain" and required the definition of adequate medical care to comport with evolving standards of decency.

This article argues that the failure to medically manage withdrawals in jail and prison custody amounts to deliberate indifference to a serious medical need and, as such, constitutes a violation of Fourteenth and Eighth Amendment protections.  To do so, this article presents a detailed explanation of the current medical standards of care and demonstrates the different ways in which jails and prisons have ignored or failed to faithfully adopt such standards. This article excerpts firsthand accounts of persons in withdrawal to demonstrate the level of "unnecessary and wanton infliction of pain" caused by such deliberate indifference and argues that evolving standards of decency require the abandonment of current draconian and inhumane practices.

Modest musings on Eighth Amendment originalism two decades after Ewing v California

In part because adult offenders sentenced to prison terms have almost no chance of prevailing on an Eighth Amendment Cruel and Unusual Punishment claim, I overlooked that last month marked the 20th anniversary of the two "recent" SCOTUS cases that solidified this jurisprudential reality.  Ewing v. California and Lockyer v. Andrade, decided together in March 2003, upheld the constitutionality of two extreme prison sentences under California's Three Strikes Law, and this new Balls and Strikes commentary by Jay Willis laments the rulings.  The full headline of the B&S piece highlights its themes: "How Two Supreme Court Cases Made 'Cruel and Unusual Punishment' Meaningless: Two decades ago, the Supreme Court had the chance to stop lawmakers from sentencing people to life in prison for petty theft. It decided to look the other way."  Here is part of the discussion:

Many Supreme Court cases are policy disputes disguised as esoteric legal questions, but the sleight-of-hand is never clumsier than when the justices spend page after page attempting to divine what “proportionate” means.  In Lockyer and Ewing v. California, which the Court decided the same day, most of the justices agreed that a sentence could be cruel and unusual; they just disagreed about how cruel or unusual it must be to merit intervention.  (I say “most” because Justice Clarence Thomas wrote separately in Ewing to opine that the Eighth Amendment contains no “proportionality principle” at all, thus leaving open the possibility that lawmakers could one day impose even longer prison sentences for stealing even fewer children’s movies, if they were so inclined.)

The issue in Lockyer and Ewing is, in other words, fundamentally one of policy.  And although O’Connor frames her conclusions as deferential to the discretion exercised by lawmakers, the opinions make clear that she agreed with their choice.  Much of her rhetoric would not be out of place in the stump speech of any mid-90s candidate straining to portray himself as tougher on crime than his opponent: Three-strikes laws, she wrote in Ewing, target “career criminals” who “must be isolated from society in order to protect the public safety.”  Ewing’s sentence, she continued, was the product of a “rational legislative judgment…that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.”

Andrade didn’t lose because O’Connor’s Eighth Amendment analysis was “better,” in any meaningful sense of the word.  Andrade, and millions of other people facing unconscionable prison sentences, lost because the conservative justices had the votes to infuse constitutional law with their own feelings about crime and punishment.

I am disclinined in this medium to robustly debate this particular accounting of Ewing and Lockyer, but I do think it is timely and worthwhile to note here that the Supreme Court's robust turn toward originalism is based in part on asserions that it takes judges' "own feelings" out of constitutional interpretation.  Indeed, Justice Thomas in Ewing did not reference any "policy" for his vote, but rather cited to Justice's Scalia's prior originalist analysis in Harmelin v. Michigan to ground his claim that the Eighth Amendment contains no proportionality limit on prison sentences.

And yet, as revealed by the diverse ways in which originalism is being applied in Second Amendment cases since Bruen, the notion that originalism takes judges' "feelings" or policy views out of constitutional interpretation seems quite suspect.  Moreover, the work of Prof John Stinneford, the leading scholar on the original understanding of the Eighth Amendment, explains why and how Eighth Amendment originalism could and would place some limits on adult offenders sentenced to prison terms.  (See, eg, The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation and The Original Meaning of 'Cruel'.)  Other notable scholars, such as Profs Laurence Claus and Michael Mannheimer, have also developed robust arguments that a sound originalist approach to the Cruel and Unusual Punishment clause would and should restrict at least some adult prison sentences. (See, eg, The Antidiscrimination Eighth Amendment and Harmelin's Faulty Originalism.) 

So, to round these modest musings on Eighth Amendment originalism, I am deeply disappointed that SCOTUS has now gone two full decades since taking a serious look at any adult prison sentences under the Cruel and Unusual Punishments clause.  (Of course, during this period, we have seen an important juvenile sentencing jurisprudence develop along with the seemingly never-ending array of capital cases.)  The work of multiple scholars should undercut a view that, with more conservative judges taking a more originalist approach to the Constitution, the Eighth Amendment is sure to provide less protetion to defendants.  Any number of 21st Century rulings have shown how originalism can provide some defendants some more protections under the 2nd (Bruen), 4th (Jones) and 6th (Blakely) Amendments (and others).  Seems like it is past time for the 8th Amendment to finally get some (pro-defendant) originalist love.   Of course, I am not holding my breath, though that's because I see judges' "feelings" and policy views to be inevitably part of any approach to challenging and debatable legal issues.