Sentencing Law and Policy

Anyone eager to help spread cheer by highlighting Festivus (sentencing) miracles?

Happy Festivus to all those who celebrate! 

A cranky internet this morning got me off to an early start on the airing of grievances.  That tends to be the best known of this faux-holiday's grand traditions, and I have done posts in prior years in which I encouraged airing of sentencing grievances in this space (see, eg, posts from 2021 and 2015).  But, circa 2023, it certainly seems alomst every day in almost every online space almost everyone is busy airing grievances.  Thus, I am disinclined to encourage the airing of grievances in this space.  Instead, let me encourage discussion of any and all Festivus miricles.  (Of course, feats of strength are also appreciated on this silly special day, though this onlne space is not quite an easy place to show off.)

I will get the good (miraculous?) news going with a link and a quote from the substack of data analyst Jeff Asher (who is founder of AH Datalytics which provides great real-time accounting of big city murder data).  Specifically, this post from the Jeff-alytics Substack earlier this month, titled "Crime in 2023: Murder Plummeted, Violent and Property Crime Likely Fell Nationally," provides this accounting of 2023 crime data (with links from the original):

Murder plummeted in the United States in 2023, likely at one of the fastest rates of decline ever recorded.  What’s more, every type of Uniform Crime Report Part I crime with the exception of auto theft is likely down a considerable amount this year relative to last year according to newly reported data through September from the FBI.

Americans tend to think that crime is rising, but the evidence we have right now points to sizable declines this year (even if there are always outliers).  The quarterly data in particular suggests 2023 featured one of the lowest rates of violent crime in the United States in more than 50 years.

Murder is down 12.7 percent in our YTD murder dashboard as of this writing (December 7th) with a decline in 73 percent of the more than 175 cities with available data.  The sample suggests either the largest or one of the largest national declines in murder on record occurred this year (both in terms of percent and absolute decline).

Of course declining murder does not mean there were not thousands upon thousands of these tragedies this year.  Nor does it mean that there was an acceptable level of gun violence, even in places seeing rapid declines.  It simply means that the overall trend was extraordinarily positive and should be recognized as such.

Detroit is on pace to have the fewest murders since 1966 and Baltimore and St Louis are on pace for the fewest murders in each city in nearly a decade.  Other cities that saw huge increases in murder between 2020 and 2022 like Milwaukee, New Orleans, and Houston are seeing sizable declines in 2023.  There are still cities like Memphis and Washington DC that are seeing increasing murders in 2023, but those cities are especially notable because they are the outliers this year, not the norm.

Happy Festivus for the rest of us!

Prez Joe Biden commutes prison terms of 11 non-violent drug offenders and extends pardons to more marijuana possession offenses

As set forth in the official "Statement from President Joe Biden on Clemency Actions," Prez Biden has decided to use his clemency pen a little this holiday season.  Here is how the statement starts:

America was founded on the principle of equal justice under law.  Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect this core value that makes our communities safer and stronger.  That is why today I am announcing additional steps I am taking to make the promise of equal justice a reality.
 
First, I am commuting the sentences of 11 people who are serving disproportionately long sentences for non-violent drug offenses.  All of them would have been eligible to receive significantly lower sentences if they were charged with the same offense today.
 
Second, following my pardon of prior federal and D.C. offenses of simple possession of marijuana, I am issuing a Proclamation that will pardon additional offenses of simple possession and use of marijuana under federal and D.C. law. 

Upon first read, I believe there are additional marijuana possession offenses (eg, attempt charges and regulatory offenses) that are covered in today's marijuana pardon Proclamation beyond those federal marijuana possession offenses that were pardoned by Prez Biden's blanket pardons back in Oct 2022.  In addition, anyone who committed a federal marijuana possession offense after Oct 2022 until today is also covered by the new proclamation (which is, technically, many millions of Americans even though very few get actually arrested and prosecuted for violatons of federal law's blanket prohibition on marijuana possession). 

I am inclined to guess that folks at the Justice Department's Office of the Pardon Attorney came to realize that Prez Biden's Oct 2022 pardon grants had some gaps that could and should be filled by an even broader proclamation.  Notably, though, this new Proclamation still provide this express limit on its reach: "This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense."

As for the commutation, the list of 11 individuals granted commutations today makes for an interesting read.  Most of the recipients are from the south and were serving 20 years or longer for crack offenses.  Two clemency recipients were convicted of meth offenses.   But none of the receipients will be home for the holidays, as three have their prison sentence "commuted to expire on February 20, 2024," and six have their sentence "commuted to expire on April 20, 2024."  (Why 4/20 was selected as the main sentence expiration date is beyond me, though I expect the "weed numerati" will find some meaning in that decision.)

Finally, I find it especially notable and interesting that four of the clemency recipients had been sentenced to LWOP terms and that two of these folks seemingly will still have many more years to serve in prison.  Earlie Deacon Barber and Darryl Allen Winkfield both were serving life terms, but will now have their federal prison terms expire on April 20, 2024.  But Deondre Cordell Higgins's life sentence was "commuted to a term of 25 years," and Leroy Lymons' life sentence was "commuted to a term of 27 years."  Because both of these persons were sentenced in the early 2010s, it seems unlikley they will be scheduled for relase from federal prison until the 2030s.  But, of course, for them that still surely beats never being scheduled for release from prison at all.

US Sentencing Commission provides (not quite complete) "Year in Review"

The US Sentencing Commission sent me email today titled "A Look Ahead + Year in Review."  One email cannot, of course, cover all that the Commission has been doing in an eventful 2023, but I was struck more by what was barely mentioned than by what was included in the USSC's five-point "Year in Review."  Here is what's listed in the email I received:

1. Long-awaited First Step Act implementation and Compassionate Release policy statement update

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted in April to promulgate amendments to the federal sentencing guidelines, and, in August, authorized delayed retroactive application of parts of one amendment (Amendment 821 relating to criminal history).

2. Launched a new public comment portal

The Commission launched a new Public Comment Portal in January where the public can participate in the amendment process and submit comment online during formal public comment periods.

3. First public hearing witness panel solely comprised of formerly incarcerated individuals 

At its February public hearing on the proposed Compassionate Release amendments, the Commission convened a panel of formerly incarcerated individuals.

4. Updated analysis of oft-cited 2017 Demographic Differences report

In November, the Commission updated its research on demographic differences in federal sentencing finding that — after controlling for available personal and offense characteristics — sentencing differences across demographic groups persisted during the five years following the release of its 2017 Demographic Differences in Sentencing Report.

5. Commission proposed 2024 amendments relating to acquitted conduct and simplification of the current "three-step process"

The Commission proposed a number of possible amendments in November relating to consideration of acquitted conduct under the new Guidelines, expanded consideration of an individual’s youthful age at sentencing, and a proposal that would simplify the current "three-step process" followed by judges at sentencing by effectively removing step two — consideration of departures under the Guidelines Manual.

Though all five of these USSC's developments are certainly noteworthy, I view the most consequential and significant action by the USSC as its intricate amendments to the guidelines' criminal history rules and its decision to make those amendments retroactive. (This action is briefly referenced in item #1, but merits much more attention in my view.)  The USSC's data suggests that perhaps as many as half of all federal defendants sentenced in the future may have their guideline range impacted by these amendments and also that perhaps tens of thousands of current federal prisoners migth be able to get their sentenced reduced as a result of making these amendments retroactive.

I also find it interesting the Commission has flagged here its recent proposal to effectively remove "consideration of departures."  I hope I will get a chance in the coming days to explain why I am not a fan of this proposal, though the closing mention of this proposal has me now wondering if the USSC may already have its mind made up on this front.

Some notable (red) state clemency headlines and stories

In part because I had a small role in the stories behind recent pardon activity here in Ohio, I am quite pleased that I can here flag some great clemency news from the Buckeye State along with a couple of other new clemency stories emerging from other (red) states.  (And though I am always happy and eager to round-up these state clemency stories, I still find it frustrating that there is not a concerted effort by every chief executive in every state to make the holiday season happier by making greater use of the clemency power.) 

From North Carolina, "Roy Cooper issues four pardons, commutes one man's prison sentence"

From Ohio, "Ohio governor's expedited pardon project surpasses 100 pardons for reformed citizens"

From Tennesse, "Tennessee Gov. Bill Lee issues 22 pardons, commutation to woman convicted at 21"

The Sentencing Project releases review of "Top Trends in Criminal Justice Reform, 2023"

The folks at The Sentencing Project todat released this new report that reviews a number of state criminal justice reform developments in this past year. I recommend the short report in full for all the reviewed details, and here is its opening "overview":

The United States is the world leader in incarceration.  This year marked 50 years of the mass incarceration crisis, with the prison population having grown nearly 500% since 1973.  Today, nearly two million people – disproportionately Black – are incarcerated in prisons and jails.

However, stakeholders, including formerly incarcerated activists and lawmakers, have worked to scale back mass incarceration.  Advocacy organizers and officials in at least 10 states advanced reforms in 2023 that may contribute to decarceration and address the collateral impact of mass incarceration, while also supporting community-based public safety solutions.

This brief highlights 2023 policy reforms in decarceration, collateral consequences and youth justice.

New Prison Policy Initiative briefing explores reported 2022 increase in incarcerated persons in US

Over at the Prison Policy Initiative, Wendy Sawyer has this new briefing titled "Why did prison and jail populations grow in 2022 — and what comes next?".  Like so many PPI reports, this one st filled with interesting data and helpful graphics.  It begins this way (link from the original):

The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?

To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.

Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decades of evidence that such policies don’t enhance public safety.

"The Prosecutor Vacancy Crisis"

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

There is a prosecutor vacancy crisis in the United States.  Prosecutors are quitting in droves and there are few applicants to replace them.  In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%.  In Alameda, 25% of prosecutor positions are empty.  And in Miami, a staggering 33% of prosecutor positions are unfilled.  The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this article documents how low salaries, massive caseloads, the lack of remote work options, and crushing discovery burdens have caused an exodus from prosecutors’ offices.  Worse yet, many young lawyers no longer perceive prosecutor jobs as admirable public service.  Following the murder of George Floyd, law students are more likely to believe that public defenders, rather than prosecutors, are on the side of justice.

Prosecutor vacancies are dangerous to public safety and, counter-intuitively, to criminal defendants as well. Vacancies lead to junior prosecutors having massive caseloads that they cannot handle.  In turn, busy prosecutors fail to dismiss weak cases, leaving innocent defendants to languish in jail.  Vacancies also result in junior prosecutors being promoted to senior positions before they are ready. And vacancies cause Brady violations because busy offices fail to provide adequate training, and individual prosecutors lack the time review their casefiles and recognize Brady material.

US Sentencing Commission releases new report on "Education Levels of Federally Sentenced Individuals"

The US Sentencing Commission this week released this notable new research report titled "Education Levels of Federally Sentenced Individuals." This latest report is summarized on this USSC webpage, which also sets forth "Key Findings," in this way:

The Commission has previously published reports on the relationship between demographic factors and sentencing, but none have focused specifically on the educational attainment of federally sentenced individuals.  The federal sentencing guidelines provide that specific characteristics of sentenced individuals, such as education, may be considered at sentencing; yet there is little information published that examines differences across education levels.  This report provides an analysis of the federally sentenced individuals in fiscal year 2021 by educational attainment...

• Most federally sentenced U.S. citizens had a high school degree (42.3%) or never graduated high school (28.4%).
   
• The types of offenses committed by federally sentenced U.S. citizens varied by educational attainment.
  • For those with less than a high school degree, drug trafficking (42.0%) was the most common offense, followed by firearms (25.2%), immigration (11.5%), robbery (4.2%), and fraud (4.1%).
  • Sentenced individuals with an undergraduate or graduate degree were convicted more often for economic or sex offenses than sentenced persons with less education. Approximately one-third (32.9%) of sentenced individuals with an undergraduate degree were convicted of a fraud offense.
  • Similarly, fraud (42.2%) was the most common offense of conviction among federally sentenced persons with a graduate degree, though medical doctors were equally likely to commit fraud (37.6%) or drug trafficking (36.5%).

• Federally sentenced U.S. citizens with more educational attainment had less extensive criminal histories than sentenced persons in lower educational attainment groups.
   
• Sentencing outcomes for federally sentenced U.S. citizens varied by educational attainment.
  • Sentenced individuals with more educational attainment were more likely to receive probation.
  • Sentenced persons with more educational attainment were more likely to receive a sentence below the applicable guideline range.
  • Federally sentenced individuals with more educational attainment received sentences that on average were further below the applicable guideline range than those with lower educational attainment.

• Whether the degree was key to the facilitation of the offense varied considerably by type of graduate degree.
  • A substantial majority of medical doctors (85.6%) and sentenced individuals with graduate degrees in nursing (82.1%) required their degree to commit the offense.
  • In contrast, 29.3 percent of lawyers required their degree to commit the offense, and 27.5 percent received a § 3B1.3 enhancement.

Council on Criminal Justice releases new report, "Trends in Homicide: What We Know"

Via email I learned of this notable data report and analysis by the Council on Criminal Justice titled "Trends in Homicide: What We Know."  I recommend the entire reader-friendly, online report, which starts with an Introduction and Highlights.  Here is the starting text:

INTRODUCTION

The Council on Criminal Justice’s mid-year crime trends report found that murders in 30 large American cities declined by 9.4% in the first half of 2023 compared to the first half of 2022.  If this trend continues through the end of 2023, the nation will have experienced one of the largest single-year homicide reductions in the era of modern record keeping.  CCJ’s full report on trends in homicide and other crimes will be released in January.

This brief, prepared for CCJ’s Crime Trends Working Group, explores data on homicide from multiple sources. It examines victimization by age, race, and sex, as well as changes in arrests, clearance rates, the victim-offender relationship, and other key measures.  Drawing on Working Group presentations and conversations, the brief also explores possible explanations for the rise in homicide seen during the height of the pandemic and social justice protests of mid-2020, and, in most cities, its subsequent decline.

The recent decrease in murders is encouraging.  But far more can and must be done to achieve lasting reductions in homicide and other violent crime.  Government agencies and community organizations are testing myriad approaches. CCJ’s Task Force on Policing and Violent Crime Working Group highlighted numerous evidence-based strategies and reforms to improve law enforcement, increase police collaboration with community organizations, and strengthen the overall effectiveness of violence reduction efforts.  Multiple jurisdictions have drawn on this guidance.  And, in December, the U.S. Department of Justice released a violence reduction “roadmap” based on the Ten Essential Actions framework produced by the Violent Crime Working Group.  The roadmap organizes the department’s grant programs, training and technical assistance, and other resources by the ten action steps; the Police Executive Research Forum will assist jurisdictions seeking to implement the recommended strategies.

HIGHLIGHTS

• The U.S. homicide rate began to trend upward in 2015 after a long-running decline.  After reaching a peak in 2021, it remained 24% higher in a sampling of 30 cities in the first half of 2023 than it was before the COVID-19 pandemic.

• People aged 15 to 19 years old were three times more likely to die by homicide in 2020-2021 than in 1960.

• Black males were eight times more likely and Black females were four times more likely to die by homicide in 2020-2021 than their White counterparts.

• Arrests of Black adults for homicide dropped 65% from 1980 to 2020, but Black people were six times more likely to be arrested for homicide in 2020 than White people.

• Since 2020, more than three-quarters of homicides have been committed with guns. This marks an increase from 1980 to 1990, when firearms were used in fewer than two-thirds of reported homicides.

• The homicide clearance rate has dropped steadily since the 1960s. In 2022, the clearance rate was about 50%, meaning that just half of murders resulted in an arrest and fewer than half resulted in a conviction.

Possible Florida test case for new capital child rape statute now in the works

Almost eight months ago, I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?"  In that post, I wondered aloud "about the facts of any 'Kennedy test case', [and] how long it might take to get to SCOTUS."  As reported in this recent press peice, we now have a a possible test case getting started: 

In a first for the state of Florida, prosecutors in the Sunshine State will be pursuing capital punishment against a man accused of raping a child where no death occurred under a new law that runs counter to the U.S. Supreme Court’s current Eight and Fourteenth Amendment precedent.

The Fifth Judicial Circuit State Attorney Office on Thursday filed court documents stating its intent to seek the death penalty against 36-year-old Joseph Andrew Giampa, who was indicted by a grand jury on six counts of sexual battery on a child under age 12 and three counts of promoting a sexual performance of a child. According to a news release from the state attorney’s office, prosecutors want to put Giampa to death due to “the severity of the crime and its impact on the community.”

The notice filed in Lake County Circuit Court lists numerous aggravating factors, which prosecutors say implore the state to seek the death penalty. Such factors include that the crime was committed for “pecuniary gain,” it was “especially heinous,” the victim was “particularly vulnerable,” and Giampa had previously been convicted of a violent felony....

According to a probable cause affidavit obtained by Law&Crime, authorities responded on Nov. 2 to Giampa’s home about a possible sexual battery. Once there, deputies detained Giampa. In his camper, deputies said there was a computer with a video showing an adult sexually assaulting a child under 12. After the sexual assault, the assailant who was recording the attack “set the camera down” and then “walked in front of the camera.” Authorities said the adult male in the recording was Giampa. Giampa then sexually assaulted the juvenile several more times as the video continued before exiting the room as “the juvenile victim begins cleaning up in view of the camera.”

The case is certain to pose constitutional challenges as the legislation adopted and signed by Gov. Ron DeSantis earlier this year is patently contra to the Supreme Court’s 2008 case Kennedy v. Louisiana, which prohibits the death penalty as punishment “where no life was taken in the commission of the crime.”...

Of the four justices who dissented — Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas — three are still on the court, while all five of those who voted in the majority have been replaced, predominantly by justices whose overall judicial ideology is far more right-leaning.

The legislation’s text explicitly states that the high court’s earlier rulings on death penalty prohibitions were “wrongly decided and that such cases are an egregious infringement of the states’ power to punish the most heinous of crimes.”

DeSantis already released a statement indicating his intent to take the case up with the justices. “Today, the State’s Attorney for the Fifth Judicial Circuit announced that they will seek the death penalty in a case of sexual battery against a child under age 12,” he wrote in a Facebook post. “It will be the first case to challenge SCOTUS (U.S. Supreme Court) since I signed legislation to make pedophiles eligible for the death penalty. The State’s Attorney has my full support.”

Because I do not know the intricacies of Florida criminal procedure, I do not know if there are (appealable) means for the defendant here to seek some kind of dismissal/striking of the capital aspect of these charges.  I noted in my prior post that the 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."   But is it really proper for a state judge to entertain and allow criminal charges to move forward contrary to on-point state and federal constitutional law?  (Imagine if New York passed a statute, hoping SCOTUS might change its approach to the Second Amendment since Bruen is proving problematic, that ordered state courts to enforce a problematic gun law "notwithstanding existing case law.")

Whatever the possible procedures at an early stage of Florida's capital litigation, I wonder if the defendant here may be eager to seek to plea given what sounds like damning evidence of guilty.  Indisputably guilty murderers who face capital charges often offer to plead guilty to avoid a possible death sentence, but a prosecutor must be willing to make such a plea deal.  It will be interesting to see if this local Florida prosecutor will want to persistently pursue this capital charge which is certain to come with years and years of litigation.

Prior related post:

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

Rounding up some notable recent reads

A very busy weekend (and week ahead) leads me to think a round-up post make be in order to cover lots of ground and recommend lots of recent pieces that are worth checking out:

From The Atlantic (by my old friend Mark Osler), "The Forgotten Tradition of Clemency: Minnesota reformed its system for granting mercy to those in prison. The federal government should take note"

From Bolts, "Inside the Urgent Campaign to Commute North Carolina’s Entire Death Row"

From Crime and Justice News, "How Conservative Governor Cut Prisoner Totals, Boosted Rehab"

From The Hill, "Why embracing criminal justice reform is a ‘First Step’ toward victory in 2024"

From MSNBC, "The ‘modern-day slavery’ in Alabama’s prisons exists in other states' prisons, too"

From the New York Times, "Prisoners Sue Alabama, Calling Prison Labor System a ‘Form of Slavery’: The plaintiffs, who are all Black, contend that the state regularly denies incarcerated people parole so that they can be “leased” out to make money for government agencies and businesses"

From The New Yorker, "Sentenced to Life for an Accident Miles: Away A draconian legal doctrine called felony murder has put thousands of Americans — disproportionately young and Black — in prison"

From NPR, "Ohio prosecutors broke rules to win convictions and got away with it"

Also from NPR, "Lawmakers push for federal prison oversight after reports of inadequate medical care"