Sentencing Law and Policy

Notable new commentaries on Justice Alito's criminal justice jurisprudence

The Harvard Journal of Law & Public Policy this past week posted a significant number of new commentaries here under the banner The Jurisprudence of Justice Samuel Alito: A Symposium.  Here is how the links to the pieces are introduced:

The essays in this symposium, authored by prominent federal judges and renowned academics, focus in-depth on Justice Alito’s approaches to a wide variety of areas of law.  Versions of most of these essays were presented as addresses at a March 2022 symposium convened by Professor Robert P. George and Yuval Levin, co-hosted by the James Madison Program in American Ideals and Institutions at Princeton University and the American Enterprise Institute. 

Two of the 14 pieces in this collection are focused on Justice Alito's criminal justice jurisprudence:

• Justice Alito on Criminal Law – Kate Stith
• Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham

The piece by Judge Oldham mentions some post-Booker cases in passing, and the piece by Professor Stith discusses the sentencing/criminal history stories around the Armed Career Criminal Act at great length. Both pieces stress what they call Justice Alito's " pragmatism" in this arena.

These pieces generally fail to note that Justice Alito's version of criminal justice "pramatism" seems to mean that the police and prosecutors, and not the individual, will almost always prevail.  This 2017 empirical article detailed that Justice Alito had not once voted in favor a Fourth Amendment litigant in a divided case.  I have not been able to find a similar accounting for other parts of the SCOTUS criminal docket, but I have a hard time recalling divided cases in any criminal justice arena in which Justice Alito voted for the criminal defendant.  That reality leads me to think of Justice Alito's "pragmatic" criminal justice jurisprudence to be most fundamentally about prioritizing state and federal criminal powers over individual rights and protections.

Prez Biden commutes 31 federal sentences and releases "Alternatives, Rehabilitation, and Reentry Strategic Plan"

As reported in this new Washington Post piece, "President Biden commuted the sentences of 31 nonviolent drug offenders Friday as the White House rolled out a broad initiative that aims to bolster the “redemption and rehabilitation” of people previously incarcerated through greater access to housing, jobs, food and other assistance."  Here is more:

The actions came during what Biden has proclaimed as Second Chance Month, an attempt to put a greater focus on helping those with criminal records rebuild their lives.

The 31 commutations were for people convicted of nonviolent drug crimes, who were currently serving time in home confinement and taking advantage of education and employment opportunities, the White House said. Many would have received a lower sentence if they were charged with the same offense today due to changes in the law, including the First Step Act, a bipartisan criminal justice bill signed into law by President Donald Trump in December 2018.

At a briefing for reporters, Susan Rice, director of the Domestic Policy Council, described the series of measures as prudent steps to improve public safety while safeguarding taxpayer dollars by increasing the chances that people released from prison will have opportunities to live rehabilitated lives.

“As many as one in three Americans have a criminal history record, yet far too many of them face barriers to getting a job or home, obtaining health care or finding the capital to start a business,” Rice said. “By investing in crime prevention and a fairer criminal justice system, we can tackle the root causes of crime, improve individual and community outcomes and ease the burden on police.”

The effort includes more than 100 actions across 20 agencies, ranging from the Department of Education to the Department of Housing and Urban Development to the Bureau of Prisons. Under the changes, people leaving prison could have more access to housing vouchers, Pell grants, food benefits and small business loans, Rice said.

These official docuements from the The White House provide a lot more of the particulars:

FACT SHEET: Biden-⁠Harris Administration Takes Action During Second Chance Month to Strengthen Public Safety, Improve Rehabilitation in Jails and Prisons, and Support Successful Reentry

Clemency Recipient List

The full 77-page White House Alternatives, Rehabilitation, and Reentry Strategic Plan

Both the timing and the subsatnces of these actions seem quite intriguing, though I am going to review the details and reflect a bit before providing any distinctive take. I will thus be content now to just say kudos to Prez Biden, because even modest actions in this arena are always meaningful and important.

Lengthy press series explores the modern history of the death penalty and executions in Arizona

Throughout this week, the Arizona Mirror has run a series of lengthy articles on the death penalty authored by journalist Michael Kiefer and defense attorney Dale Baich.  This set of pieces is called “Poorly Executed: How Arizona has failed at carrying out the death penalty,” which provides a sense of its main themes, and is described as "a five-part series exploring the modern history of the death penalty and executions in Arizona."  Here are headlines and links to the five pieces:

Part 1: Witness to an execution

Part 2: The ‘Golden Age of executions’ comes to an end

Part 3: IVs and ironies

Part 4: ‘The experiment failed,’ halting executions in Arizona

Part 5: The politics behind executions

"Rights Violations as Punishment"

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

Is punishment generally exempt from the Constitution?  That is, can the deprivation of basic constitutional rights — such as the rights to marry, bear children, worship, consult a lawyer, and protest — be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment?  On one hand, such state intrusion on fundamental rights would seem unconstitutional.  On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison.  If a judge can sentence someone to life in prison, how can a judge not also have the power to strip someone of the right to marry, or speak, as direct punishment? 

Surprisingly, as this Article reveals, existing law offers no coherent explanation as to why rights-violating punishments somehow escape traditional constitutional scrutiny.  Yet the question is critical as courts — often in the name of decarceration — increasingly impose non-carceral punishments that deprive people of constitutional rights.

National Institute of Corrections releases report on "Effects of COVID-19 on Prison Operations"

A new email alerted me to this relatively short report from the National Institute of Corrections titled "Effects of COVID-19 on Prison Operations."  This NIC webpage provides this accounting of the report:

The COVID-19 pandemic has posed a significant challenge for correctional agencies in our country. However, practical information on how to respond to this crisis has been scarce. As a result, correctional leadership has had to be innovative in keeping their staff and populations safe while maintaining operations.  To complicate matters, many state departments of corrections have faced reduced budgets, making these challenges even more difficult to overcome.  This report, produced by the National Institute of Corrections (NIC), CNA, the Correctional Leaders Association (CLA), and the National Sheriffs' Association (NSA), sheds light on the modifications made by correctional facilities across all 50 states in response to the pandemic. The report includes an overview of these modifications, their impact on operations, and the innovative responses taken by correctional facilities.  The report's key findings will be discussed in detail.

Key Takeaways include:

• Staffing shortages: 
  Respondents noted that correctional agencies need expanded capacity, staffing, supplies, and resources to operate effectively both during public health emergencies and under nonemergency conditions.

• Community trust: 
  According to the respondents, it was crucial to develop policies to address vaccine hesitancy, especially during the pandemic. This included creating policies to address hesitancy among incarcerated individuals to receive vaccines and follow COVID-19 protocols that further limited their freedoms. Establishing peer ambassadors and monitors was an effective strategy to encourage policy buy-in and information sharing.

• Implementing public health guidelines:
  Effective collaboration among personnel, institutions, agencies, and community partners was considered crucial for the success of operations during the pandemic, according to respondents. They believe that such collaboration must be nurtured and expanded in the future. To achieve this, agencies should be committed to expanding information-sharing capabilities and fostering a culture of interdisciplinary collaboration and networking.

• Disruptions to programming and services: 
  Respondents used technology to adapt to the pandemic, such as video visits and remote court hearings. Expanding technology use should continue as it demonstrated value. Despite the stress, the pandemic was seen as an opportunity for growth. The report captures the effects of COVID-19 on correctional operations and provides innovative approaches. Correctional leaders can use the findings to improve operational readiness for future outbreaks and emergencies.

US Sentencing Commission releases "geographic sentencing data" from FY22

I just saw that the US Sentencing Commission this week posted here its "geographic sentencing data" for Fiscal Year 2022.  The USSC webpage has links to localized data reports that provide all sorts of fascinating "data slices" about the federal sentencing world. Here is how the webpage explains the over 100 localized reports:

These reports examine federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. Each set consists of the following figure and tables:

• Figure A - Federal Offenders by Type of Crime
• Figure B - Distribution of Primary Drug Type in Federal Drug Cases
• Table 1 - Distribution of Federal Offenders by Type of Crime
• Table 2 - Guilty Pleas and Trials in Each Circuit and District
• Table 3 - Guilty Pleas and Trials by Type of Crime
• Table 4 - Sentence Type by Type of Crime (National)
• Table 5 - Sentence Type by Type of Crime (District)
• Table 6 - Incarceration Rate of U.S. Citizen Offenders Eligible for Non-Prison Sentences by Type of Crime
• Table 7 - Sentence Length by Type of Crime
• Table 8 - Sentence Imposed Relative to the Guideline Range
• Table 9 - Sentence Imposed Relative to the Guideline Range in Each Circuit and District
• Table 10 - Sentence Imposed Relative to the Guideline Range by Type of Crime

Just a few clicks on some of the circuit reports and glances at Figure A highlight some interesting (though perhaps unsurprising) data about how very different caseload mixes can be in different regions.  For example, in the Fifth Circuit's district courts, nearly 60% of federal cases sentenced in FY 2022 were immigration cases, while about 20% were drug cases and less than 8% were firearm cases.  But, in the First Circuit's district courts, nearly 50% of the federal cases sentenced in FY 2022 were drug cases, while nearly 13% were firearm cases and less than 6% were immigration cases.

"Gender, Violence, and the Death Penalty"

The title of this post is the title of this new article available via SSRN authored by Sandra Babcock and Nathalie Greenfield. Here is its abstract:

This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row.  We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution.  Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials.  When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result.  Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence.  Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

"Modernize the Criminal Justice System: An Agenda for the New Congress"

The title of this post is the title of this notable new report authored by Charles Fain Lehman, who is a fellow at the Manhattan Institute. Here is the report's executive summary:

Crime, particularly violent crime, is a pressing concern for the American people.  The surge in homicide and associated violence in the past three years has made voters skittish and prompted aggressive partisan finger-pointing.  This increase has not, however, prompted significant investment in our criminal justice system.  Ironically, as this report argues, this increase in violent crime is itself a product of fiscal neglect of that same system over the past decade.

Across a variety of measures, in fact, the American criminal justice system needs an upgrade.  Police staffing rates have been dropping since the Great Recession; prisons and jails are increasingly violent; court backlogs keep growing; essential crime data are not collected; and essential criminology research is not conducted.  These shortcomings contribute not only to the recent increase in violence but to America’s long-term violence and crime problems, problems that cost us tens of thousands of lives and hundreds of billions of dollars each year.

For too long, policymakers at all levels have failed to attend to this problem.  Instead, both the political left and right have subsumed criminal justice issues into the larger culture war, fighting over the worst excesses of the police or the horrors of criminal victimization.  Rather, they should look to past examples of federal policymaking in which lawmakers have used the power of the purse to dramatically improve the criminal justice system’s capacity to control crime.  Doing so again could ameliorate many of the major concerns voiced by both sides in the criminal justice debate.

As such, this report proposes an ambitious, $12-billion, five-year plan to bring the criminal justice system up to date. It outlines proposals to:

1. Hire 80,000 police officers;
2. Dramatically expand funding of public safety research, including creating an Advanced Research Projects Administration for public safety;
3. Rehabilitate failing prisons and jails with a carrot-and-stick approach;
4. Create and propagate national standards for criminal case processing;
5. Upgrade our data infrastructure, including by creating a national “sentinel cities” program.

Implementing these proposals would be a drop in the federal spending bucket, but they would likely have a dramatic and sustained impact on reducing the amount and cost of crime in America.

Eighth Circuit panel seemingly misreads the US Sentencing Commission's sentence reduction guideline amendment

I have previously blogged here and here about the US Sentencing Commission's decision to amend 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)."  There are lots of intricate elemens to this amendment, and one key provision concerned the authority of judges to consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction. 

This issue was the only one clearly dividing the new Commissioners: four Commissioners voted for a new provision -- § 1B1.13(b)(6) -- that expressly states that, in certain circumstances, "changes in the law ... 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."  Three other Commissioners voted againt this provision because they did not believe  the USSC should ever allow "changes in the law" to be considered in determining whether a defendant presents and "extraordinary and compelling reason" for a sentence reduction.

A helpful reader sent me an Eighth Circuit opinion, US v. Rodriguez-Mendez, No. 22-2399 (8th Cir. April 25, 2023) (available here), that seems to misread just what the USSC has done with this amendment to the reduction-in-sentence guideline.  In this case, the panel first explains that the Eighth Circuit had pervious "held that a non-retroactive change in law regarding sentencing ...  cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A)."  Then the panel rejects the defendant's argument that the Supreme Court's opinion in Concepcion v. US, 142 S. Ct. 2389 (2022), required changing that prior holding.  (I disagree with that reading of Concepcion, as explained here, but a number of courts have adopted it.)  

Then, in the last few paragraphs of this new Rodriguez-Mendez opinion, the Eighth Circuit panel mentions that the Sentencing Commission’s proposed amendment to § 1B1.13.  But after quoting key provisions of the amendment, the panel states (with my emphasis added): "It thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion."   But this seems flatly wrong because, as noted above, the new language of § 1B1.13(b)(6) expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  In other words, the Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circucumstances.  (And, notably, the defedant in this case, Rodrigo Rodriguez-Mendez, might well meet the circumstances the Commission set forth for "change in the law" to provide the basis for a sentence reduction.)

I have argued in this post that the new amended provision of "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" could and should be seen to now overrule prior circuit rulings that changes in law cannot provide a basis for a sentence reduction.  But some may reasonably claim that the amendment to § 1B1.13 only should be given effect after November 1, 2023, which is when all the new guideline amendments will become effective.  But I do not think anyone can reasonably claim, as the Eighth Circuit panel seems to do here, that the new amended guideline serves to codify the claims of some circuits that changes in law can never provide a basis for a sentence reduction.

The Sentencing Project releases short report on "Increasing Public Safety by Restoring Voting Rights"

I received via email this morning this eight-page document from The Sentencing Project titled "Increasing Public Safety by Restoring Voting Rights."  Here is how the document gets started:

Restoring voting rights for people with felony convictions can improve public safety.  Voting is among a range of prosocial behaviors in which justice-impacted persons can partake, like getting a college education, that is associated with reduced criminal conduct.  Among Americans with a history of criminal legal system involvement, having the right to vote or the act of voting is related to reduced recidivism.  The re-entry process after incarceration improves because restoring voting rights gives citizens the sense that their voice can be heard in the political process, and contributes to building an individual’s positive identity as a community member.

The studies featured in this brief underscore the beneficial impacts of restoring voting rights for all Americans who have been convicted of a felony, whether they are inside or outside of prison.

A call for papers from the Law & Psychology Review

A colleague requested that I post a call for papers from the Law & Psychology Review and he noted that the journal "routinely publishes pieces at the intersection of psychology and criminal law."  I am happy to be able to share this cal for papers:

LAW & PSYCHOLOGY REVIEW - CALL FOR PAPERS

MAY 10, 2023 DEADLINE FOR EXPEDITED CONSIDERATION

The Law & Psychology Review at the University of Alabama School of Law is the leading student-edited journal exploring the intersection of behavioral and legal studies.  We have a rigorous editorial review and revision process designed to strengthen the style and structure of each article that we select.  As a specialized journal, we bring experience and expertise when it comes to editing works with psychological and behavioral aspects.

The Law & Psychology Review is opening a special direct submission window.  Submissions (in Word or pdf format) should be emailed to [email protected]  Submissions received by May 10, 2023, at 5:00 pm CT will receive a publication decision by May 14, 2023, at 11:59 pm CT.

All submissions must include a psychological component and be relevant to law and/or policy. We prefer articles with more than 10,000 words (including references) and in Bluebook format.

If you have any questions, please do not hesitate to contact us at the email address above.

Three Justices dissent from denial of cert in Tennessee felony-murder capital case

The Supreme Court this morning issued this order list with a lot of certiorari denials (and grants in two related cases involving government social-media activity).  There was one notable statement in dissent from the denial of certiorari by Justice Sotomayor, joined by Justices Kagan and Jackson, in Burns v. Mays, No. 22–5891.  The seven-page dissent starts this way:

Petitioner Kevin Burns, a defendant sentenced to death for felony murder, brought a 28 U.S.C. §2254 petition claiming inadequate assistance of counsel at the penalty phase of his trial.  Burns asserts that counsel failed to present mitigating evidence tending to show that he did not shoot either of the two victims killed during a robbery in which he participated. Such evidence does not bear on Burns’ guilt, since his participation in the underlying robbery suffices to render him guilty of felony murder.  Evidence that Burns did not pull the trigger, however, was plainly relevant to the jury’s determination whether to sentence him to death.  The Sixth Circuit avoided this obvious conclusion only by mischaracterizing Burns’ claim as being about counsel’s failure to introduce residual doubt evidence (i.e., evidence that Burns was not, in fact, guilty of felony murder).  From there, the Sixth Circuit concluded that the claim must fail because this Court has never established a right to introduce residual doubt evidence at sentencing.

Burns argues, and the State does not contest, that the Sixth Circuit’s analysis turned on two erroneous legal assumptions and clearly conflicts with several decisions of this Court.  Burns asks this Court to take summary action to correct these fundamental legal errors so that his claim may be fairly considered before the State executes him. The Court, however, declines to intervene.  I would summarily vacate the error-laden (and precedential) decision below and remand for further consideration of Burns’ claim.  I respectfully dissent from the Court’s failure to do so.

"Abolition Then and Now: The Role of Furman's Failure in Today's Abolition Success"

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

On the fiftieth anniversary of Furman v. Georgia, one cannot help but draw comparisons between the sociopolitical context in which we find ourselves today, and the one in which the Justices found themselves in 1972.  Once again, the death penalty is dying — history, it would seem, is repeating itself.  But beneath these surface similarities lie important differences between the two eras, and what they mean for the larger abolition story.  Abolition today is not a story about the highest court in the land; rather, it is a story about a movement from the bottom-up, with states ending the death penalty on their own.  Instead of aiming high, abolitionists are aiming low.  In two ways, Furman itself played a part in this dramatic shift.  First, the backlash to Furman taught abolitionists that the Supreme Court’s “help” may do more harm than good, halting change already in progress, and that the Court would be a fickle friend. Hence the lesson to aim low.  Second, the Supreme Court’s reaction to Furman’s backlash in Gregg v. Georgia inadvertently set in motion the means to make this dramatic shift happen.  Gregg’s attempt to tame the death penalty created a mass of complicated doctrine, and that gave rise to a cadre of specialized capital defenders to navigate it. Those defenders are the foot soldiers of today’s abolition movement, killing the death penalty by saving one life at a time.  The modern path to abolition is not without its downsides, but the upside to states ending the death penalty on their own is that this time when the death penalty dies, it may well stay that way for good.