Sentencing Law and Policy

Another weekend round-up of various (mostly prison) stories

Last weekend, I used this round-up to catch up on a number of capital punishment stories.  After another busy week, I am catching up again with a round-up of stories; this week are mostly various prison-related pieces: 

From the AP, "Inmate stuck on US death row despite vacated death sentence"

From The Brennan Center for Justice, "America’s Dystopian Incarceration System of Pay to Stay Behind Bars"

From CNN, "He was released after decades in prison, now a court says he must go back"

From Government Executive, "Management of the Federal Prisons System Is Added to GAO’s High-Risk List"

From the Los Angeles Times, "California Politics: The prison reform that divides California Democrats"

From the Los Angeles Times, "A California lawyer cashed in on criminal justice reform by fanning the hopes of inmates’ families"

From Michigan Advance, "Convictions cleared for nearly 850K Michiganders as ‘Clean Slate’ program takes effect"

From Penn Live, "Despite 5 years of mail scanning to keep drugs from Pa. prisons, problems remain"

From Reuters, "U.S. Supreme Court turns away suit by Texas inmate held 27 years in solitary confinement"

From the Spokesman-Review, "Inslee signs bill officially repealing death penalty in Washington"

From the St. Louis Post-Dispatch, "Missouri becomes first state to join national reentry program for people leaving prison"

"The Illusion of Heightened Standards in Capital Cases"

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

The death penalty has gained its legitimacy from the belief that capital prosecutions are more procedurally rigorous than noncapital prosecutions.  This Article reveals how a project of heightened capital standards, set in motion when the Supreme Court ended and then revived the death penalty, was set up to fail.

In establishing what a constitutional death penalty would look like, the Court in 1976 called for heightened standards of reliability in capital cases.  In the late 1970s and early 80s, the Supreme Court laid out specific constitutional procedures that must be applied in capital cases, and left the door open for the Eighth Amendment to do even more. In the decades that followed, state and federal courts have fueled a perception of heightened procedural rigor in capital cases by referring repeatedly to the heightened standards applicable in capital cases.

However, a review of courts’ application of a standard of “heightened reliability” reveals that (1) courts routinely use the language of “heightened” standards while simultaneously applying exactly the same constitutional tests that are used in noncapital cases and demonstrating no serious effort to tie procedural rigor to the severity of punishment; and (2) even more problematic, some courts have shown a willingness to use the “heightened reliability” language to justify a lesser procedural protection for capital defendants than that applied to noncapital cases — a perverse application of what was clearly intended to be an added measure of assurance that the death penalty is reserved only for those who are truly guilty and who are the most culpable.

This decades-long failure to observe meaningfully heightened constitutional standards calls into question the death penalty’s institutional legitimacy and raises particular concerns in light of current Supreme Court trends.

Senators Durbin and Grassley introduce again set of FIRST STEP follow-up bills

For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress.  But I was still pleased to learn today, thanks to an email from a helpful reader, that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.  This press release, headlined "Durbin, Grassley Reintroduce Criminal Justice Reform Bills," discusses the bills, and here is how it starts:

U.S. Senate Majority Whip Dick Durbin (D-IL), chairman of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), the lead sponsors of the landmark First Step Act (FSA), reintroduced three pieces of criminal justice reform legislation today to further implement the FSA and advance its goals.  The First Step Act, which was signed into law in 2018, is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  Today, Durbin and Grassley reintroduced the First Step Implementation Act, the Safer Detention Act, and the Terry Technical Correction Act.

“In 2018, Congress came together to pass the most important criminal justice reform law in a generation,” Durbin said.  “But as its name suggests, it was just the first step.  In order to keep making our justice system fairer and our communities safer, we must continue reforming our antiquated and outdated sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  Senator Grassley and I will continue to work together to ensure that these goals are fully met.”

“Criminals need to face just penalties, and our system should seek to prevent recidivism.  Our work on the First Step Act did that, and our new package of bills will further the goals of fairness, public safety and reduced crime.  The programs we are bolstering aim to help make inmates productive citizens when they reenter society, and not fall back into a life of crime.  I appreciate my longtime cooperation with Senator Durbin, and look forward to the work ahead,” Grassley said.

"Five Faces of the Public Defender"

The title of this post is the title of this new paper authored by Scott Howe now available on SSRN. Here is its abstract:

Special stigma attaches to zealous public defenders.  They are widely viewed as undermining the public welfare, of acting immorally and of inappropriately empathizing with criminals over victims.  Poor funding for public defender offices in many jurisdictions underscores what the body politic in those places thinks of unsparingly zealous public defense.  The stigma finds sustenance in an account endorsed by zealous public defenders themselves that they function as client-centered advocates, operating largely outside the criminal-justice system, and without caring about the public welfare, about guilt or innocence or much about victims.  This scenario poses a dilemma for zealous public defenders who aim to counter the allegations or for poorly funded defender offices that seek to acquire more resources so that they can provide consistently zealous representation.

How can they rebut criticisms with which they largely agree?  This article argues that they could, in theory, acknowledge their work as multi-faceted, requiring that they sometimes serve as zealous advocates but often also in several roles that directly benefit the state.  This alternate perspective finds support in the Supreme Court’s acknowledgement in recent years that criminal justice has become for the most part a system of guilty pleas rather than of trials.  Although this strategy is the most truthful and responsive to the critics, the article finds it unworkable from the perspective of the zealous public defenders, which reveals a conundrum.  The zealous public defenders must deceive themselves that they are rebels who do not care about the public interest (or about justice or victims) to effectively serve it.  Yet, while zealous public defenders face difficulty in making their own case, the article exposes the reality and the illusion to help defend them against their critics.

Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

As detailed in this prior post, earlier this month, Oklahoma's Attorney General filed a motion to vacate the conviction of death row inmate Richard Glossip in the Oklahoma Court of Criminal Appeals.  That motion today was rejected, as detailed in this local article headlined "Oklahoma court won't overturn Richard Glossip's conviction; execution date set."  Here are the details:

A state appeals court has rejected a request to vacate the conviction of a high-profile death row inmate. The Oklahoma Court of Criminal Appeals on Thursday said it will not vacate Richard Glossip’s murder conviction following a request from Attorney General Gentner Drummond.

After an independent review of Glossip's case cast doubt on the death row inmate's murder conviction, Drummond asked the appeals court to vacate Glossip's conviction. Drummond said he will review the ruling and consider his next steps. He expressed opposition to the state moving forward with Glossip's execution.

"While I respect the Court of Criminal Appeals’ opinion, I am not willing to allow an execution to proceed despite so many doubts," Drummond said in a statement. "Ensuring the integrity of the death penalty demands complete certainty."

An attorney for Glossip said he will file an appeal with the U.S. Supreme Court. Don Knight, Glossip’s attorney, said it is “unconscionable” for the Oklahoma appeals court to force the state to move forward with this execution....

Glossip was convicted of first-degree murder for allegedly orchestrating the 1997 beating death of his Glossip has long maintained that he was framed for Van Treese’s murder. His attorneys claim that their client was set up by a motel maintenance man who they argue killed Van Treese during a botched robbery and shifted the blame to avoid getting the death penalty himself.

Glossip’s fifth application for post-conviction relief provides no new information to convince the court to overturn his conviction, according to the 5-0 opinion written by Judge David Lewis. “This case has been thoroughly investigated and reviewed in numerous appeals,” Lewis wrote in the majority opinion. "Glossip has been given unprecedented access to prosecution files, including work product, yet he has not provided this Court with sufficient information that would convince the Court to overturn the jury’s determination that he is guilty of first-degree murder.”...

The appeals court also refused to delay Glossip's execution any further. Glossip is set to die by lethal injection on May 18.

The full 25-page ruling of the Oklahoma Court of Criminal Appeals is available at this link.

Office of the Pardon Attorney hostong "A Celebration of Second Chance" in honor of Second Chance month

A helpful reader altered me to an event, called "A Celebration of Second Chances," that the Office of the Pardon Attorney is hosting in honor of Second Chance month. This program will be livestreamed at this link tomorrow, Friday, April 21, 2023, at 10:00 am EDT. The email I received flagging the celebration event described it this way:

The event will feature opening remarks by Deputy Attorney General Lisa Monaco and Assistant Attorney General Kristen Clarke and a panel of speakers who will discuss the impact of second chances through clemency.  Speakers will include Assistant Attorney General Kenneth Polite, Jr., former Deputy Attorney General David Ogden, and the Honorable Alexander Williams, Jr., and clemency recipients Danielle Metz, Norman Brown, and Evans Ray.  The event will also honor special guests who have received clemency from President Biden and his predecessors or who have received other forms of second-chance relief.

Over at this webpage at the Office of the Pardon Attorney, one can find this broader discussion of Second Chance Month 2023 activities (links from the original):

On March 31, 2023, President Biden issued a presidential proclamation marking April as Second Chance Month. Read the President’s statement.

The Office of the Pardon Attorney (PARDON) is dedicated to supporting the President’s work to provide second chances to individuals who are currently or previously were incarcerated by the federal justice system.  Executive clemency is a powerful tool that can alleviate barriers to reentry, in securing steady employment, safe housing, quality health care, educational opportunities, the right to vote, and loans for a home or business.  Executive clemency can also address outdated federal criminal policies, particularly those that disproportionately affected Black and Brown Americans, such as through President Biden’s full presidential pardon of federal and D.C. convictions for simple marijuana possession offenses.

We invite you to join PARDON in celebrating second chances throughout April and beyond by attending an event or by spreading word about the availability of executive clemency.Second Chance Month events:

• April 12, 2023: Art Open House, open to DOJ employees
• April 21, 2023: A Celebration of Second Chances (watch the livestream)
• April 25, 2023: Clemency workshop for returning citizens in the District of Columbia
• April 26, 2023: Pardon Training webinar hosted by the ACLU
• April 27, 2023: Bureau of Prisons workshop with the Pardon Attorney

New analysis of original dataset concludes "COVID-19 amplified racial disparities in the US criminal legal system"

The journal Nature today released here a new study by multiple authors titled "COVID-19 amplified racial disparities in the US criminal legal system."  Here is the empirical paper's abstract:

The criminal legal system in the USA drives an incarceration rate that is the highest on the planet, with disparities by class and race among its signature features.  During the first year of the coronavirus disease 2019 (COVID-19) pandemic, the number of incarcerated people in the USA decreased by at least 17% — the largest, fastest reduction in prison population in American history.  Here we ask how this reduction influenced the racial composition of US prisons and consider possible mechanisms for these dynamics.  Using an original dataset curated from public sources on prison demographics across all 50 states and the District of Columbia, we show that incarcerated white people benefited disproportionately from the decrease in the US prison population and that the fraction of incarcerated Black and Latino people sharply increased.  This pattern of increased racial disparity exists across prison systems in nearly every state and reverses a decade-long trend before 2020 and the onset of COVID-19, when the proportion of incarcerated white people was increasing amid declining numbers of incarcerated Black people.  Although a variety of factors underlie these trends, we find that racial inequities in average sentence length are a major contributor.  Ultimately, this study reveals how disruptions caused by COVID-19 exacerbated racial inequalities in the criminal legal system, and highlights key forces that sustain mass incarceration.  To advance opportunities for data-driven social science, we publicly released the data associated with this study at Zenodo.

LawProf Jessica Eaglin has this companion piece in Nature describing the study.  The full title of the companion piece highlights the themes: "COVID pandemic increased racial disparities in US prison populations.  A public data set on the size and racial composition of US prison populations has been generated.  Its analysis indicates how biases in sentencing lengths shape prisons’ racial make-up in the United States."

"Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study"

The title of this post is the title of this new paper authored by G. Ben Cohen, Justin Levinson and Koichi Hioki now available via SSRN. Here is its abstract:

Inside the fraught history of American homicide law sit two long-criticized doctrines, felony murder and accomplice liability.  Though each of these rules have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy must also be defined by the way they function symbiotically and specifically to heighten racialized punishment.  This Article addresses the weighty combined reach of the accomplice liability and felony murder doctrines and proposes that racial bias has fueled the operation and survival of the rules.  Specifically, it suggests that implicit racial bias has led to the automatic individuation of white men who are involved in group crimes, while at the same time created automatic de-individuation for Black and Latino men in similar situations, rendering these two doctrines complicit in state sanctioned racialization.

While legislative and judicial power exist to constrain regimes that unfairly expand criminal liability while ignoring criminal responsibility, the Article argues that the phenomenon of white individualization sustains these doctrines when they would otherwise have been discarded.  A national empirical study the authors conducted supports the claim of racialized group liability in the felony murder rule, demonstrating that Americans automatically individualize white men, yet automatically perceive Black and Latino men as group members. In addition to this core finding, the study also found that mock jurors disproportionately penalized men with Latino-sounding names compared to men with white or Black-sounding names, ascribing to them the highest levels of intentionality and criminal responsibility in a group robbery and ensuing homicide.  Contextualized within the troubled history of the felony murder and accomplice liability rules, the Article concludes by calling for the abandonment of the felony-murder doctrine in group liability situations.

In 6-3 ruling, SCOTUS rules for Texas capital defendant concerning statute of limitation for seeking DNA testing in § 1983 action

The Supreme Court handed down a notable criminal procedure ruling this morning in Reed v. Goertz, No. 21-422 (S. Ct. April 19, 2023) (available here). Justice Kavanaugh wrote the opinion for the Court which starts this way:

In many States, a convicted prisoner who still disputes his guilt may ask state courts to order post-conviction DNA testing of evidence.  If the prisoner’s request fails in the state courts and he then files a federal 42 U.S.C. §1983 procedural due process suit challenging the constitutionality of the state process, when does the statute of limitations for that §1983 suit begin to run?  The Eleventh Circuit has held that the statute of limitations begins to run at the end of the state-court litigation denying DNA testing, including the state-court appeal. See Van Poyck v. McCollum, 646 F. 3d 865, 867 (2011).  In this case, by contrast, the Fifth Circuit held that the statute of limitations begins to run when the state trial court denied DNA testing, notwithstanding a subsequent state-court appeal. See 995 F. 3d 425, 431 (2021). We conclude that the statute of limitations begins to run at the end of the state-court litigation.

Justice Thomas authored a lengthy solo dissent that starts this way:

The Texas Court of Criminal Appeals (“CCA”) affirmed the denial of petitioner Rodney Reed’s state-law motion for postconviction DNA testing. Reed petitioned this Court for certiorari, arguing that the CCA’s interpretation and application of the relevant state law violated his federal due process rights. After we denied his petition, Reed repackaged it as a complaint in Federal District Court, naming respondent (the Bastrop County District Attorney) as a placeholder defendant. Like his earlier certiorari petition, Reed’s complaint assails the CCA’s state-law reasoning as inconsistent with due process, and it seeks a declaration that the CCA’s interpretation and application of state law was unconstitutional.

Reed’s action should be dismissed for lack of subjectmatter jurisdiction. Federal district courts lack appellate jurisdiction to review state-court judgments, and Reed’s action presents no original Article III case or controversy between him and the district attorney. Because the Court erroneously holds that the District Court had jurisdiction over Reed’s action, I respectfully dissent.

Justice Alito wrote a shorter dissent joined by Justice Gorsuch that has these opening pragraphs:

As the Court notes and the parties agree, the statute of limitations for Reed’s claim is two years. Ante, at 4; Brief for Petitioner 17; Brief for Respondent 17. Reed filed his complaint on August 8, 2019, and the lower courts held that this was too late. The question before us is when the 2-year statute of limitations began to run, that is in legal parlance, when Reed’s claim “accrued.” As the parties agree, the general rule is that a claim accrues when the plaintiff has “a complete and present cause of action,” Wallace v. Kato, 549 U. S. 384, 388 (2007) (internal quotation marks omitted). Reed contends that his claim did not accrue until the Texas Court of Criminal Appeals (CCA) denied his petition for rehearing on October 4, 2017, and thus refused to retract the interpretation of Article 64 that the court had unanimously adopted on April 12, 2017. Goertz, on the other hand, argues that Reed’s claim accrued no later than the date of the CCA’s April 12 decision, and because that date preceded the federal lawsuit by more than two years, Goertz maintains that we should affirm the Fifth Circuit’s decision that Reed’s complaint was filed too late.

As I will explain, there is room for debate about exactly when Reed’s DNA testing claim accrued, but in my view, the notion that this did not take place until rehearing was denied is clearly wrong.

In Ninth Circuit appeal, Elizabeth Holmes challenges convictions and also seeks resentencing

As reported in this new Insider piece, former Theranos CEO Elizabeth Holmes has filed an appeal of her conviction and sentence in the Ninth Circuit.  Here are the basics:

Holmes was convicted on four counts and sentenced last November to 11.25 years in prison, with three years of supervision following her release.  Holmes, 39, is due to begin her sentence on April 27 after a judge last week denied her request to remain free while she appeals her conviction.  At the time her punishment was handed down, Holmes told the court, through tears, that she was "devastated by my failings" and "felt deep pain for what people went through because I failed them."

But in the brief filed Monday with the US Court of Appeals for the 9th Circuit, Holmes's attorneys claim her original trial was flawed, producing an "unjust" conviction and a "severe" prison sentence.  They argue that she was unjustly barred from citing Balwani's testimony in her own defense....

Holmes's defense team also argued that testimony from Theranos' former lab director, Dr. Adam Rosendorff — that the company's technology was "uniquely problematic" — improperly influenced the court, citing the fact that Rosendorff was not cross-examined and questioned about failings in other labs at which he worked.

For those reasons, the court "should reverse the conviction and remand for a new trial or, alternatively, remand for resentencing," Holmes's lawyers wrote.

The full Holmes brief to the Ninth Circuit is available at this link. The last dozen or so pages of the brief develops the sentencing argument, and here is how this part of the brief begins:

At sentencing, the district court applied a 26-level Guidelines enhancement, adding more than 10 years to what otherwise would have been a 0-7 month range.  It did so by making factual findings about the number of victims and the amount of loss by a mere preponderance of the evidence, based in large part on extra-record and untested evidence such as government interview memoranda.  That was error: under this Court’s precedent, the court needed to find the facts supporting its severe enhancement by clear-and-convincing evidence.  The result of this error is an excessive 135-month term of imprisonment.  That is 27 months higher than what the Probation Office recommended, for a woman who — unlike other white-collar defendants — neither sought nor gained any profit from the purported loss and was trying to improve patient health.  At a minimum, this Court should remand for resentencing.

(FWIW: I think the first sentence means to say "a 0-6 month range.")

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 
• Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April
• Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions 

"Mental Illness as a Sentencing Determinant: a Comparative Case Law Analysis Based on a Machine Learning Approach"

The title of this post is the title of this new paper authored by Mia Thomaidou and Colleen Berryessa now available via SSRN.  Here is its abstract:

This study identifies factors that contribute to sentencing outcomes for criminally sentenced individuals experiencing mental disorders, in two U.S. states with divergent sociopolitical ideologies.  Recent case law (n = 130) from appellate courts in New York and Kansas (from 2020 to 2021) was analyzed using regression and machine learning to predict sentence severity for individuals experiencing mental disorders.  Across both states, trauma-related and personality disorders led to the most severe sentences, while paraphilia, addiction, and mood disorders had the lowest probability of imprisonment.  Sentencing outcomes in Kansas were significantly more severe as compared to New York.  A classification analysis identified important patterns of sentencing determinants that predicted which mental disorders were more likely to lead to incarceration.  Findings and implications are discussed in relation to punishment disparities, as well as the potentials and pitfalls regarding the use of machine learning approaches in criminal justice research and policy. 

Notable new Roll Call review of congressional views of US Sentencing Commission's debate over sentence reductions

Roll Call has this notable new piece discussing the debate over the new federal sentencing guidelines for sentence reduction motions.  The article mostly discusses the politics surrounding reform rather than all the particulars of the legal reforms, and I am not sure it breaks any new ground.  But it is still a useful read for those keeping up on these matters, even though the text and even the headline of the piece is a bit off legally.  Here are excerpts:

A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law, an approach Republican senators warned will hamper, if not destroy, the possibility of future criminal justice legislation.

The policy approved this month by the low-profile U.S. Sentencing Commission is deep in the legal weeds, giving guidance for federal judges on how to interpret a section of a sweeping bipartisan overhaul of the federal criminal justice system passed in 2018.  But the debate on that approach, which goes into effect in November unless Congress disapproves it, offers an inside look at the negotiations and challenges for lawmakers who want to take more steps to address racial inequality in the criminal justice system through sentencing changes...

In the 2018 criminal justice law, Congress allowed federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons. Judges released thousands of inmates through that mechanism during the COVID-19 pandemic.

Under the sentencing guidance the commission adopted this month, a change in a law could be potential grounds for reducing a defendant’s sentence. Specifically, judges could consider reducing the sentence of an inmate who has served 10 years of an “unusually long sentence” if there is a “gross disparity” between their sentence and sentences imposed under new law.

Senate Majority Leader Mitch McConnell of Kentucky and Sen. Charles E. Grassley of Iowa, who was the lead Republican on the push for the 2018 law, warned the commission that the guidance would cause problems for future bills that would reduce prison sentences. McConnell in a February letter to the commission said that no issue was more controversial during the debate on the 2018 law than whether it would be applied retroactively to those already in prison. Congress is extremely careful with use of retroactivity — if lawmakers want something to be retroactive, they typically say so clearly in the law — and so guidance that approves of judges doing so would “poison the well” in Congress, he said....

The guidelines went through changes following the comments from Senate Republicans and Democrats, but the thrust of the provision remained the same and the commission voted for guidelines that approve of judges retroactively considering certain sentences.

I am inclined to dicker with the very first clause of the article — "A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law" — because it was Congress who created the tool to reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) and Congress did so way back in 1984.  In addition, as this article notes, the FIRST STEP Act of 2018 (another act of Congress) allowed this tool to function more effectively by allowing prisoners to make motions directly in court for sentence reduction without awaiting a filing by the Bureau of Prisons. 

Moreover, since passage of the FIRST STEP Act, many circuits have ruled that a change in law could be potential grounds for reducing a defendant’s sentence in any and every case, whereas the new guidelines promulated by the US Sentencing Commission significantly restricts the circumstances under which a change of law can be the basis for a sentencing reduction.  Thus, I think a more accurate openning line might have been something like: "A federal agency has narrowed the reach of a long-standing tool that Congress provided to judges as a means to reduce sentences which had become far more widely used after passage of the bipartisan FIRST STEP Act."

Only a week until "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order"

I blogged a few weeks ago about the program I have helped put together which I am calling a "must-see" for all sentencing fans, especially in the New York City area.  Now the event is just a week away: on April 24, 2023, as detailed on this New York City Bar Association webpage and in this complete program agenda, you can see a full day of sentencing-focused panels as part of an event titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order."   Here is the basic event decription from the NYCBA webpage:

Published in 1973, Judge Marvin Frankel’s book Criminal Sentences: Law Without Order, assailed just about every aspect of existing arbitrary sentencing practices and advocated for the creation of a “commission on sentencing” to be tasked with developing guidelines for “the numerous factors affecting the length or severity of sentences.”  Judge Frankel’s book paved the way for modern sentencing reform, spurring the enactment of numerous sentencing reforms at the state level and the passage of the Sentencing Reform Act of 1984 which completely rebuilt the federal sentencing system.  As a result, Criminal Sentences: Law Without Order has affected tens of millions of defendants sentenced in state and federal courts over the last half-century.

At the same time, some have suggested his proposals — or at least their implementation — have contributed significantly to the growth of prison populations in recent decades.  Reflecting on Judge Frankel’s book a half-century later can provide profound insights and perspectives on how modern sentencing has evolved and where it should be headed.  The one-day symposium will bring together sentencing experts from academia and law practice to discuss various aspects of Judge Frankel’s ideas, how they have played out over the last half-century, and whether they should guide us for the next fifty years.

This full-day event will include a light breakfast, multiple plenary panels, lunch, two sets of concurrent panels, a fireside chat, and a closing reception.  Please find the day's complete agenda here.

If you click through to see the full program, you will see that you can even earn CLE credit for some of the panels.  As I mentioned before, I feel incredible fortunate to have had the chance to put this program togther with many helpful folks assocaited with the Council on Criminal Justice, the Drug Enforcement and Policy Center, and the New York City Bar Association. 

US Sentencing Commission releases FY 2023 first quarter sentencing data

Today the US Sentencing Commission released on its website its latest quarterly data report which sets forth "Preliminary Fiscal Year 2023 Data Through December 31, 2022."  These new data provide the latest accounting of how the COVID era continues to echo through federal sentencing.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be just over 15,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases primarily accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 10 quarters of offiical USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  In this most recent quarter, the official data show that only 42.2% of all federal sentences are imposed "Within Guideline Range."  This number is not an historic low, but it continues the modern statistical reality that now more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

There are a lot of interesting data and stories to mine from the last USSC data report, but for some reaosn I was especially struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest quarter, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencingcaseload than powder and crack cocaine, heroin and fentanyl combined.  Morever, the average sentence for all those meth cases is over eight years in prison, whereas the average for all the others is under six years.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, the meth defendants than anyone else. 

Supreme Court grants cert on due process requirements in civil asset forfeiture case

There was a lone cert grant in the US Supreme Court's order list this morning, and this Bloomberg news piece highlights why the case might be of interest to crimina justice fans.  Here is how the press account starts:

The US Supreme Court agreed to hear a case that asks whether people are owed an immediate hearing to recover property that was seized by the government in a crime they didn’t commit.

At the center of the case granted Monday are two Alabama residents whose cars were impounded when someone else was arrested while driving them. Lena Sutton lost her car after her roommate was pulled over for speeding and arrested for possessing large amounts of methamphetamine. Halima Culley lost her vehicle when her son was pulled over and arrested for illegally possessing drugs and a firearm.

The grant carries the case name Culley v. Marshall, and here is how the cert petition in this matter presents the question:

In determining whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and  Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis as set forth by Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits .

Preparing for some criminal action as SCOTUS heads into homestretch for OT22

After a couple of (eventful) weeks off, the Supreme Court heads into its last set of oral arguments for the current Term.  There are a couple of cases being argued the next two Wedensdays that might be of interest criminal justice fans:

Counterman v. Colorado, No. 22-138, to be argued April 19:

Issue: Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

Tyler v. Hennepin County, Minnesota, No. 22-166, to be argued April 26:

Issue: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

In addition, this coming week, we are due to get an orders list before arguments start on Monday and opinions from argued cases on both Tuesday and Wednesday.  Before too long we should be getting some more opinions in some more of the the criminal cases argued last fall (though I am inclined to guess we might not get Jones v. Hendrix, the case of great procedural interest, for a few more months).