Sentencing Law and Policy

Longest sentence yet in Jan 6 case, 14+ years in federal prison, given to man with 38 priors

As reported in this Fox News piece, a "Kentucky man with a long criminal record was sentenced Friday to a record-setting 14 years in prison for attacking police officers with pepper spray and a chair as he stormed the U.S. Capitol with his wife." Here is more:

Peter Schwartz’s prison sentence is the longest so far among hundreds of Capitol riot cases.  The judge who sentenced Schwartz also handed down the previous longest sentence — 10 years — to a retired New York Police Department officer who assaulted a police officer outside the Capitol on Jan. 6, 2021.  Prosecutors had recommended a prison sentence of 24 years and 6 months for Schwartz, a welder.

U.S. District Judge Amit Mehta sentenced Schwartz to 14 years and two months in prison, followed by three years of supervised release.  Mehta said Schwartz was a "soldier against democracy" who participated in "the kind of mayhem, chaos that had never been seen in the country's history."

"You are not a political prisoner," the judge told him. "You're not somebody who is standing up against injustice or fighting against an autocratic regime."

Schwartz briefly addressed the judge before learning his sentence, saying, "I do sincerely regret the damage that Jan. 6 has caused to so many people and their lives."  The judge said he didn't believe Schwartz's statement, noting his lack of remorse. "You took it upon yourself to try and injure multiple police officers that day," Mehta said.

Schwartz was armed with a wooden tire knocker when he and his then-wife, Shelly Stallings, joined other rioters in overwhelming a line of police officers on the Capitol’s Lower West Terrace, where he threw a folding chair at officers. "By throwing that chair, Schwartz directly contributed to the fall of the police line that enabled rioters to flood forward and take over the entire terrace," prosecutor Jocelyn Bond wrote in a court filing.

Schwartz, 49, also armed himself with a police-issued "super soaker" canister of pepper spray and sprayed it at retreating officers.  to a tunnel entrance, Schwartz coordinated with two other rioters, Markus Maly and Jeffrey Brown, to spray an orange liquid toward officers clashing with the mob.  "While the stream of liquid did not directly hit any officer, its effect was to heighten the danger to the officers in that tunnel," Bond wrote....

Stallings pleaded guilty last year to riot-related charges and was sentenced last month to two years of incarceration.

Schwartz was tried with co-defendants Maly and Brown.  In December, a jury convicted all three of assault charges and other felony offenses.  Mehta sentenced Brown last Friday to four years and six months in prison.  Maly is scheduled to be sentenced June 9.

Schwartz’s attorneys requested a prison sentence of four years and six months.  They said his actions on Jan. 6 were motivated by a "misunderstanding" about the 2020 presidential election.  Then-President Donald Trump and his allies spread baseless conspiracy theories that Democrats stole the election from the Republican incumbent....

Schwartz was on probation when he joined the Jan. 6 riot. His criminal record includes a "jaw-dropping" 38 prior convictions since 1991, "several of which involved assaulting or threatening officers or other authority figures," Bond wrote....

The 10-year prison sentence that Mehta handed down in September to retired NYPD officer Thomas Webster had remained the longest until Friday.  Webster had used a metal flagpole to assault an officer and then tackled the same officer as the mob advanced toward the Capitol.

US Supreme Court stays the execution of Richard Glossip

As reported in this AP article, the "Supreme Court on Friday blocked Oklahoma from executing death row inmate Richard Glossip for his role in a 1997 murder-for-hire after the state’s attorney general agreed Glossip’s life should be spared." Here is more:

Glossip had been scheduled to be put to death on May 18 despite statements by new Oklahoma Attorney General Gentner Drummond that Glossip did not receive a fair trial.  An Oklahoma appeals court subsequently upheld Glossip’s conviction and the state’s pardon and parole board deadlocked in a vote to grant him clemency.

The high court put the execution on hold indefinitely while it reviews the case.  Justice Neil Gorsuch took no part in the decision, presumably because he dealt with the case earlier as an appeals court judge.

“There is nothing more harrowing than the thought of executing a man who the state now admits has never received a fair trial,” Glossip attorney Don Knight said in a statement.  “Our hope is that the court will reverse the decision of the (Oklahoma Court of Criminal Appeals) and vacate Mr. Glossip’s conviction once and for all.”

Drummond, a Republican, said in a statement he was grateful for the high court’s decision. “I will continue working to ensure justice prevails in this important case,” he said.  In a rare move, Drummond, the state’s top prosecutor, supported a high-court reprieve for Glossip, telling the justices, “Glossip’s trial was unfair and unreliable.”

But Drummond also has said he does not believe Glossip is innocent of the murder-for-hire killing of Glossip’s former boss, Barry Van Treese, in 1997. Another man, Justin Sneed, admitted robbing and killing Van Treese after Glossip promised to pay him $10,000. Sneed received a life sentence in exchange for his testimony and was the key witness against Glossip....

Former Oklahoma County District Attorney David Prater has long said he believes Glossip persuaded Sneed to kill Van Treese. He said that while Sneed’s testimony was most compelling, there was plenty of evidence to corroborate it. “When police came to talk to Glossip about Van Treese’s whereabouts, he directed him away from the room he knew Van Treese was in,” Prater said Friday. “At any point, Glossip had the opportunity to tell the police that Sneed did this. He never did that. He even helped Sneed clean up everything.”

Prater said Sneed and Glossip also both had a large amount of cash that Prater said they stole from Van Treese’s car. “In light of Gentner Drummond’s position regarding the stay, I don’t feel like the Supreme Court had much of a choice,” Prater said. “But the truth will come out.”

Two separate independent investigations have revealed problems with the prosecution’s case. Drummond said Sneed lied on the stand about his psychiatric condition and his reason for taking the mood-stabilizing drug lithium, and that prosecutors knew Sneed was lying. Also, evidence was destroyed, Drummond said.

Some Republican state lawmakers who support the death penalty have joined the growing chorus of Glossip supporters who are seeking to overturn his conviction. “We’re just ecstatic,” state Rep. Kevin McDugle said in a brief telephone interview on Friday.

Glossip’s case has been to the Supreme Court before. He was given a reprieve in 2015, although the court later ruled 5-4 against him in a case involving the drugs used in lethal executions.  Glossip has been just hours away from being executed three separate times. His last scheduled execution, in September 2015, was halted just moments before he was to be led to the death chamber when prison officials realized they had received the wrong lethal drug. That mix-up helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

A few prior recent relates posts:

• Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim 
• New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction
• Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

"Law and Order: The Timing of Mitigating Evidence Affects Punishment Decisions"

The title of this post is the title of this paper now available via SSR authored by Emily Conder, Christopher Brett Jaeger and Jonathan Lane. Here is its abstract:

When we hear about a transgression, we may consider whether the perpetrator’s individual circumstances make their transgression more understandable or excusable.  Mitigating circumstances may reduce the severity of punishment that is deemed appropriate, both intuitively and legally.  But importantly, in courts of public opinion and of law, mitigating information is typically presented only after information about a perpetrator’s transgression.  We explore whether this sequence influences the force of mitigating evidence.

Specifically, in two studies, we examined whether presenting evidence about a perpetrator’s background before or after evidence of their violation influenced how severely U.S. participants punished perpetrators.  In Study 1 (N=132), evidence about the perpetrator’s mitigating circumstances reduced punishment only when it was presented before evidence about the perpetrator’s violation.  Study 2 (N=316) additionally revealed this moderating effect of presentation order across a variety of premeditated and impulsive violations.  These findings are consistent with person-centered theories of punishment and with the Story Model of adjudication.

DOJ's Inspector General reports on "aging and deteriorating" federal prison facilities

As detailed in this official press release, "Department of Justice (DOJ) Inspector General Michael E. Horowitz [has] announced ... the release of a report evaluating the Federal Bureau of Prisons’ (BOP) efforts to maintain and construct correctional institutions. The DOJ Office of the Inspector General (OIG) also launched a web page with photos and videos documenting the condition of prison cells, cell blocks, and kitchen, dining, and other areas at five BOP institutions (FCI Terminal Island, USP Atlanta, FTC Oklahoma City, CI Taft, and MCC New York)."  Here is more:

As described in today’s report, the BOP’s institutions are aging and deteriorating: all 123 of the BOP’s institutions require maintenance, with a large and growing list of unfunded modernization and repair needs, and three of these institutions are in such critical stages of disrepair that they are fully or partially closed.  The DOJ OIG found that the BOP’s efforts to address these issues were negatively impacted by two major factors: a mismatch between available and needed funding, and the absence of a well-defined infrastructure strategy.

As of May 2022, the BOP’s estimated cost for needed, major repairs was approaching $2 billion. However, our audit found that the BOP’s budget requests have been far below its own estimates of resource needs: for example, BOP sought less than $200 million for its infrastructure needs from Congress in FY 2022, and Congress appropriated $59 million.  Consequently, the resources available to address BOP’s maintenance needs are limited, and in many cases, necessary repairs cannot be completed in a timely manner due to a lack of funding.  This results in increasingly costly maintenance and, in the most extreme circumstances, having to shutter institutions and relocate inmates due to unsafe conditions.

At the same time, we found that Congress has set aside over $1 billion for the BOP to construct two new institutions, but these funds remain largely unspent, the projects have been in the planning stages for over a decade, and the BOP’s requests each year that Congress cancel one of these projects and rescind the funds — made at the direction of the Department of Justice and the Office of Management and Budget — have not been acted on.

Florida completes execution of murderer nearly 40 years after his (repeat) crime

As reported in this AP piece, a "Florida man was executed Wednesday for breaking into a woman’s home and stabbing her to death in 1986, a crime committed months after he was released from prison for a rape." Here are more details:

Darryl B. Barwick, 56, was pronounced dead at 6:14 p.m. Wednesday following a lethal injection at Florida State Prison, the office of Republican Gov. Ron DeSantis said. The U.S. Supreme Court denied the inmate’s final appeal for a stay of execution earlier in the day.

After being brought into the death camber, Barwick said, “I can’t explain why I did what I did. It’s time to apologize to the family ... I’m sorry.” He added that he state needs to show more compassion and kindness for people, criticizing Florida’s sentencing of teenagers to life in prison....

Barwick didn’t meet in person with family members in his final hours, but had spoken with them by phone in recent days, prison officials said ahead of the 6 p.m. execution time. Officials said no relatives of the victim had arranged to witness the execution....

Barwick had confessed to killing 24-year-old Rebecca Wendt in her Panama City apartment on March 31, 1986, after watching her sunbathing outside and following her back to her room. He said he intended to rob Wendt but then killed her as she resisted, stabbing her 37 times as she tried to fight him off....

He was convicted of first-degree murder, armed burglary, attempted sexual battery and armed robbery in November 1986, and sentenced to death two months later on the jury’s 9-3 recommendation. The Florida Supreme Court threw out that conviction in 1989 because of prosecutorial misconduct. Barwick was again convicted at his 1992 retrial, and that jury unanimously recommended death.

Barwick killed Wendt less than three months after he was released from prison for raping a 21-year-old woman at knifepoint, according to court records. In his confession for Wendt’s killing, Barwick said he stabbed her because he did not want to go back to prison.

DeSantis signed Barwick’s death warrant last month. It was the third execution conducted in Florida this year after a hiatus dating back to 2019. It also was the state’s 102nd execution since the reinstatement of the death penalty in 1976.

New "End the Trial Penalty Coalition" seeks to end "coercive elements of plea bargaining" and to restore right to a jury trial

Via email, I received notice of a new colelction of advocacy groups called the "End the Trial Penalty Coalition."  Here are excerpts from the email/press release from this new Coaltion (with links from the original):

Twenty-four criminal justice organizations, impacted people, think tanks, academics, activists, and reform leaders from across the ideological spectrum have united to end the trial penalty -- the substantial and coercive difference between the sentence in a plea offer prior to trial versus the much greater sentence a defendant often receives after trial.  Those who choose to go to trial and are convicted often face sentences that are, on average, three times the plea offer and sometimes measured in decades.

The coercive and punitive effects of the trial penalty are so pervasive that they have virtually eliminated our constitutional right to trial. In fact, over 97% of cases ending in a conviction never go to trial, leading to a range of issues reverberating through our legal system, including the waiver of numerous constitutional freedoms and rights, overcriminalization, loss of public oversight, and racial injustice.  The Coalition aims to restore the right to trial, helping right these wrongs to ensure a fair, rational, and humane criminal legal system.

Members of this new Coalition will work together to raise awareness of the adverse effects of a justice system without trials, advocate policy reform, and forge relationships with key policymakers.  The Coalition will also serve as a resource for people interested in participating in an impactful criminal legal reform movement.  The Coalition has published a comprehensive Policy Overview which includes policy ideas to combat coercive practices in the plea bargaining process, to improve data collection and transparency, and to foster post-trial reform and accountability measures.

After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases

Regular readers surely recall prior posts about the McClinton case still before the US Supreme Court raising issues about the use of acquitted conduct at sentencing in which I filed an amicus brief in support of petitioner Dayonta McClinton.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

After various delays, the Justices considered the McClinton case (as well as a number of others raising acquitted conduct issues) at their conference in January 2023.  Upon initial review, these cases were all "relisted," which is usually a sign that at least one Justice is interested in taking a closer look at the case.  But then, interestingly, these cases did not appear in subsequent SCOTUS order lists nor did the docket sheet show that the case was rescheduled for future conferences.  A number of folks speculated, myself included, that the announcement by the US Sentencing Commission to consider an amendment to the federal sentencing guidelines on the acquitted conduct issue had led the Justices to put a hold on McClinton and the other acquitted conduct cases.

But, as reported here, last month the US Sentencing Commission ultimately decided not to advance any guideline amendments addressing the issue of acquitted conduct in this year's amendment cycle.  This USSC decision served, in a sense, to punt this matter back to the Justices.  (The issues and possible work of SCOTUS and the USSC on acquitted conduct are not identical, but they do overlap in various possible ways.)  Excitingly, SCOTUS seems to be back at it as the McClinton docket sheet now shows this case will be reviewed again next week by the Justices at their May 11 conference.

I still think the odds of a cert grant on this issue to be remote.  Stll, I think it important that SCOTUS indicate, one way or another, if it is inclined to review this important issue anew a quarter-century after its Watts ruling.  A host of new Fifth and Sixth Amendment jurisprudence raising questions about the practice of acquitted conduct sentencing enhancements could certainly justify review, but the Justices have been disinclined to revisit this issue for quite some time. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

"Guilty Minds"

The title of this post is the title of this new paper recently posted to SSRN authored by Michael Serota. Here is its abstract:

This Article develops a new vision of mens rea by returning to a bygone era’s conception of the guilty mind.  The common law understanding of mens rea is broad and moralistic; it encompasses all mental characteristics bearing on an actor’s blameworthiness.  Undertheorized and oft neglected, this “Guilty Minds” approach has been replaced with the Model Penal Code’s reconceptualization of mens rea as the purpose, knowledge, recklessness, or negligence applicable to every element of a criminal offense.  Modern criminal law’s embrace of this narrower and more legalistic “PKRN” approach to mens rea has brought with it many well-known benefits.  But there are also overlooked costs of divorcing mens rea doctrine from its moral foundations.  This Article demonstrates how the Guilty Minds approach, once clarified and refined, can address these costs while revealing a promising new pathway for criminal law reform.

Synthesizing a wide body of experimental research, the Article transforms the historically vague Guilty Minds approach into a multi-dimensional model of culpability rooted in the community’s sense of justice.  Drawing on contemporary criminal theory, the Article then makes the moral philosophical case for viewing this reconceptualization of mens rea as a critical constraint on criminal liability.  After identifying structural flaws in contemporary mens rea policies that violate this constraint, the Article proposes a novel statutory solution: an insufficient blameworthiness defense, which empowers factfinders to dismiss charges based upon a structured assessment of an accused’s mitigating mental states.  The Article argues that the proposed defense would be accessible to juries, administrable by courts, and harmonious with the PKRN approach — thereby providing all U.S. jurisdictions with an effective way to bolster mens rea protections in their criminal codes.

Justice Department releases latest annual report on FIRST STEP Act implementation

The US Department of Justice recently released this notable report titled simply "First Step Act Annual Report, April 2023." Here is the 50+-page report's simple introduction:

The First Step Act of 2018 (“First Step Act,” “FSA,” or “Act”) was the culmination of a bipartisan effort to improve criminal justice outcomes and reduce the size of the federal prison population, while maintaining public safety. Under Section 101 of the Act, now codified in 18 U.S.C. § 3634, the Attorney General is required to submit a report beginning two years after the date of enactment, and annually thereafter for a period of five years.  The Department of Justice (the Department) submitted its last such report to Congress in April 2022.  This is the third Annual Report submitted pursuant to Section 3634.

What follows is an extraordinary amount of information and data about FIRST STEP Act implementation on many fronts, and here is just one of a half-dozen items of note that is flagged in the report's executive summary:

Enhance the use of home confinement and prerelease custody.  Consistent with the FSA’s emphasis on transitioning individuals to a community setting, the Department has expanded the use of home confinement for individuals who do not pose a danger to the community.  As of January 28, 2023, 13,501 individuals have been released from Residential Reentry Centers (RRCs), home confinement (HC), and secure facilities pursuant to credits earned under the First Step Act.  On April 4, 2023, the Department also issued a final rule granting discretion to the Director of the Bureau of Prisons to allow individuals placed in home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to remain in home confinement after the expiration of the covered emergency period.  The final rule provides the Bureau the discretion and flexibility to impose proportional and escalating sanctions for individuals who commit infractions, including returning them to prison.  It also allows the Bureau to move individuals into RRCs when needed, including instances when the home residence is no longer viable or due to either minor accountability issues or non-significant disciplinary issues.  Consistent with the final rule, the Director of the Bureau of Prisons also instructed that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.  Since the enactment of the CARES Act on March 26, 2020, the Bureau of Prisons has placed more than 12,000 individuals in home confinement under CARES Act authority.  Of those, only a fraction of one percent has been returned to secure custody due to new criminal conduct.

"Why Criminal Defendants Cooperate: The Defense Attorney's Perspective"

The title of this post is the title of this new piece recently posted to SSRN and authored by Jessica Roth, Anna D. Vaynman and Steven D. Penrod. Here is its abstract:

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate.  But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice.  This Article — the first empirical study of the defense experience of cooperation — begins to address that gap.  The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District of Virginia, and the Eastern District of Pennsylvania.  Our study provides an entirely new and enriching perspective on the cooperation decision, building on prior theories from the cooperation and plea-bargaining literature, and providing for a more nuanced understanding of cooperation and its motivations.  In several closed- and open-ended responses, attorneys shared their opinions — at times remarkably consistent, at times strikingly and informatively different — about cooperation practices in their respective districts. The results of this study can be used to further explore the theoretical foundations of cooperation and plea bargaining and can be used to build experimental studies to test causal relationships that are otherwise nearly impossible to determine.

With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."

In Florida, a multi-month effort to push back on this doctrine culminiated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

I see that the new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."  I suppose that provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy. 

In addition to wondering about the facts of any "Kennedy test case," I cannot help but wonder how long it might take to get to SCOTUS.  There are, surely, hundreds of cases of young child sexual abuse in Florida with the child under age 12 as required by this law.  But, while there will be death eligible cases right away, we would need a prosecutor to charge under this new law and a jury to return a death verdict and recommended sentence before the appeals get going in earnest.  And the appeals would surely take quite some time before SCOTUS would even have a chance to take up a challenge to Kennedy.

Notably, three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

"Against the Recidivist Premium"

The title of this post is the title of this paper authored by Guha Krishnamurthi recently posted to SSRN.  Here is its abstract:

The American penal system is broken.  The state of mass incarceration is wreaking havoc on individuals, families, and communities. And these effects are unequally levied upon and borne by communities of color and the poor.  This state of affairs is morally odious and intolerable.  One main component of mass incarceration is the deployment of the “recidivist premium” — that is, the imposition of additional punishment on repeat offenders compared to first time offenders who commit the same offense.  This Article contends that, in light of our reasons for punishment, the recidivist premium is unjustified and indeed harmful.  As a result, I argue that, on our current state of information, we should abolish our penal system’s deployment of the recidivist premium.

This Article sets forth the comprehensive case against the use of the recidivist premium.  First, I show that the recidivist premium does not accord with our retributive theories of desert.  Then, I explain that, on our best empirical evidence, the recidivist premium does not further the principal consequentialist benefits of punishment, namely deterrence and incapacitation.  Finally, I show that the recidivist premium does not advance the desiderata of sentencing design, including consistency, calculability, predictability, and efficiency.

To live up to our ideals of equality and human dignity, we must restore the rights of those convicted of crimes when they reenter society and treat them as full members of their polity.  Any differential treatment must be specially and rigorously justified.  The recidivist premium does not satisfy that demanding standard, and thus it should not stand.

Latest reporting of US District Court's experience getting involved with supervised release

A couple of helpful folks recently focused my attention on the notable work that SDNY US District Judge Richard M. Berman has been doing in the arena of federal supervised release.  This work is discussed by Judge Berman in this Regulatory Review article, titled “Federal Court Involvement in Supervised Release,” and here is the start of this article:

In most cases, individuals’ release from federal prison does not mark the end of their sentences. A federal criminal sentence typically also includes a term of “supervised release,” which the U.S. Sentencing Commission defines as a “unique type of post-confinement monitoring that is overseen by federal district courts with the assistance of federal probation officers.”  Supervised release is intended to assist people who have served prison terms with their effective reintegration, or “reentry,” into the community.

Judges are not always actively involved in overseeing supervision.  Rather, officers of the U.S. Probation Office play the dominant role in monitoring individuals on supervised release.  Judges tend to become more involved only after a supervisee has failed to comply with the terms of supervision.  As a result, judges may miss the opportunity meaningfully to assist with reentry and to help ensure that necessary services such as drug treatment, mental health counseling, and housing and employment assistance are provided.

Over the past five-plus years, my chambers staff and I developed a more active and involved approach to supervised release.  The practice features regular supervised release hearings intended to help ensure that supervisees succeed and avoid further negative involvement in the criminal justice system.  Importantly, this practice also includes early termination of supervised release for all those who have shown that they no longer need supervision.

That Regulatory Review article also provides a link to a 2021 report with data about how this court involved supervised release functioned and some of its impacts.  A 2022 version of this report (as will as some slides) were sent my way recently, and are available in links below.  And here is part of the executive sumary of this latest report:

In this report, we provide results from our court involved supervised release project. Data and case studies are presented from the perspectives of recidivism and desistance from crime—in the areas of rearrest, return to prison, and early termination of supervision.

The Study Population rearrest rates over three and five years are 17.1% and 20.4%, respectively; the return to prison rate is 13.2%; and the early termination rate is 46.2%. These results include all Study Population supervisees and make no adjustments for “risky” supervisees.

Acknowledging that comparisons are at best imprecise, we include an AO study which shows rearrest rates of 20.8% at three years (16.3% adjusted) and 27.7% at five years (page 20); a Bureau of Justice Statistics study which shows a return to prison rate of 31.6% (page 22); and an AO early termination study which shows a rate of 18.8% (page 34).

The approach and outcomes presented in our report are very encouraging. At the same time, it is premature to conclude or to celebrate that recidivism is decreasing (page 8).

A fair conclusion to be reached from the data and the case studies is that judges who become actively involved in supervision — together with dedicated probation officers and others — can unequivocally and meaningfully assist supervisees to safely and successfully reenter their communities.

Download Judge Berman Supervised Release Report (2022.10.12)

Download Judge Berman 2023.04.05 Supervised Release Slides