Sentencing Law and Policy

Speaking to Libertarian convention, Donald Trump promises to commute prison sentence of Silk Road creator Ross Ulbricht

As reported in this Fox News piece, "Former President Trump on Saturday vowed to commute the prison sentence of Ross Ulbricht, the founder of the online drug-selling site Silk Road."  Here is more:

The GOP frontrunner made the pledge while addressing the Libertarian National Convention in Washington, D.C., in a bid to win over skeptical party activists, many of whom held up signs that read: "FREE ROSS."

"If you vote for me, on day one I will commute the sentence of Ross Ulbricht, to a sentence of time served," Trump said, winning the largest cheers of the night. "He’s already served 11 years. We’re going to get him home."

During his presidency, Trump considered intervening to release Ulbricht, but ultimately decided against the pardon.

Ulbricht, now 40, was sentenced in 2015 to life in prison by a judge who cited six deaths that resulted from drugs bought on his website and five people he tried to have killed.

Ulbricht operated the website between 2011 and 2013, when he was arrested.

Prior posts from 2015 when Ulbright was sentenced:

• You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?
• Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht
• Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht
• "Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"
• Sentencing message sent: blazing a Silk Road for drugs gets you LWOP 

Elections, past and future, have consequences for criminal justice reform policies and plans

Politico has this notable new article on criminal justice reform "vibes" coming from the White House headlined "The White House to the left: We told you so on crime."   Folks who follow criminal justice politics will not be surprised by much in the article, but it serves as an important reminder about political takes on the national mood as we head toward the heart of the election season.  Here is how:

The defeat of a liberal Portland prosecutor at the hands of a tough-on-crime challenger has hardened a view among top White House officials that Democrats need to further distance themselves from their left flank on law-and-order issues.

In the wake of the voter backlash over public safety in Oregon, Joe Biden’s aides this week argued the results served as validation of their long-running concerns that crime and an immigration crisis at the southern border risk overwhelming the president’s case for reelection — especially if the broader party is seen as soft on both fronts.

“Particularly right now, Americans don’t want to feel like things are out of control,” said one Biden official, who was granted anonymity to offer candid views about tensions within the party. “Well-meaning ideas have gone too far, and we need a sensible approach.”

The White House is banking on the idea that voters will reward them for public efforts to crack down on immigration and boost spending on law enforcement — and, perhaps as importantly, that the liberal forces that so effectively moved the party away from those planks in 2020 won’t punish the president come November.  Inside the West Wing, senior counselor Steve Ricchetti has been among the leading voices making this case, while also advocating for more toughness on the border, according to the Biden official and one other, both granted anonymity to discuss private conversations.

But the president has not needed much convincing, the officials said, having personally favored an approach that emphasizes more traditional support for law enforcement alongside criminal justice reforms. Biden spent much of his half century in politics as an ardent advocate for law enforcement and anti-crime measures, a reputation that complicated his path to the 2020 Democratic nomination amid scrutiny over his role in passing a controversial 1994 crime bill.

"Regressive White-Collar Crime"

The title of this post is the title of this new article authored by Stephanie Holmes Didwania available via SSRN. Here is its abstract:

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives.  This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime.  It shows — contrary to dominant academic and public discourse — that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses.  This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes.  This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census.  It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few.  It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States.  What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious.  This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

Former Baltimore prosecutor Marilyn Mosby gets a year of home detention in federal sentencing for perjury and fraud

As reported in this AP piece, a "former Baltimore city prosecutor who achieved a national profile for charging police officers in a Black man’s death was spared any prison time in her sentence Thursday for perjury and mortgage fraud. Marilyn Mosby’s sentence includes 12 months of home confinement, 100 hours of community service and three years of supervised release." Here is more: 

Mosby was convicted of lying about her finances to make early withdrawals from retirement funds during the COVID-19 pandemic, and fraudulently claiming that her own $5,000 was a gift from her then-husband as she closed on a Florida condominium.

Mosby, 44, has maintained her innocence. She declined to address U.S. District Judge Lydia Kay Griggsby before learning her sentence. Her lawyers said they would appeal while they seek a presidential pardon,

It’s a sad day for Mosby and her family, the judge told Mosby. “It’s also a sad day for the city of Baltimore,” said Griggsby, adding that Mosby displayed a “pattern of dishonesty” while serving in a public office. She also noted that her crimes didn’t involve any taxpayer money and said the prospect of separating Mosby from her two young daughters “weighed very heavily” on her decision.

Griggsby questioned Assistant U.S. Attorney Sean Delaney when he argued for a 20-month sentence. “Are there victims and who are they?” she asked. “It’s a good question, your honor,” Delaney responded. “I get it. This isn’t an embezzlement case.”

Delaney said it harms the public when a public official lies under oath: “All citizens are victims when their public officials lie,” he said. Delaney also denied claims by Mosby’s supporters that she is a victim of selective prosecution and said she has repeatedly lied about the case and prosecutors’ handling of it. “These lies demonstrate that Marilyn Mosby is unremorseful, that she has no regard for the truth,” Delaney said.

Mosby, 44, gained a national profile when she charged officers in the 2015 death of Freddie Gray, which led to riots and protests in the city. After three officers were acquitted, Mosby’s office dropped charges against the other three officers. She ultimately served two terms before she was indicted and lost reelection. The judge told one of Mosby’s attorneys, James Wyda, that Mosby’s lack of contrition “weighs heavily” on her sentencing. “That’s of deep concern to the court,” she said, calling it “a barrier” to their request for no prison time.

Wyda argued that Mosby is “in a category of one,” a unique case. “This is not a public corruption case,” he said. “There was no financial loss to any victim.” Wyda, a federal public defender, said Mosby’s legal team will be appealing her conviction and sentence while also seeking a presidential pardon. “Jail is not a just sentence for Ms. Mosby. Not for her family. Not for the community,” he said.

Prior related post:

• Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

"Punishing Gender"

The title of this post is the title of this new article by Erin Collins now available via SSRN. Here is its abstract:

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been a renewed interest in reforms that reduce the harms punishment inflicts on women.  These “gender-responsive” reforms aim to adapt traditional punishment practices that, proponents claim, were designed “for men.”  The push to change how we punish based on gender, while perhaps well intentioned, is misguided.  As abolition feminist principles reveal, these gender- responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state.  This Article catalogs the ways that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives.  Then, it provides an abolition feminist critique of how we “punish gender” and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all.

Interesting 6-3 split in ruling for feds in reach of ACCA covering state drug convictions

Regular readers know the Armed Career Criminal Act (ACCA) is a messy statute that has divided the Supreme Court for decades regarding how to categorize various prior convictions as possible triggers for ACCA's 15-year mandatory minimums.  Another divided Supreme Court opinion was handed down in this arena today  in Brown v. US, No. 22–6389 (S. Ct. May 23, 2024) (available here). The opinion for the Court was authored by Justice Alito, and it starts this way:

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules.  ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted for the illegal possession of a firearm and have a criminal history that is thought to demonstrate a propensity for violence.  These defendants are subject to ACCA’s enhanced penalty if, among other things, they have “three previous convictions” for “a serious drug offense.” 18 U.S.C. §924(e)(1).  For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment, and it must “involv[e] . . . a controlled substance . . . as defined in section 102 of the Controlled Substances Act” (CSA). §§924(e)(1), (2)(A)(ii). The CSA, in turn, includes five schedules of controlled substances and provides that these schedules must be updated each year by the Attorney General. 84 Stat. 1245, 1247, 21 U. S. C. §§811, 812.

The two cases now before us present the question whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.  We hold that such an offense qualifies. 

Intriguingly, five other Justices joined Justice Alito's opinion for the Court, but not the "usual suspects" when there are 6-3 divides on this Court. In this iteration, Justice Sotomayor joins the marjoirty in this ruling for the government, whereas Justice Jackson wrote a dissenting opinion, in which Justice Kagan and Gorsuch joined (though the latter joined only as to Parts I, II, and III of the dissent). Here is how the dissent gets started:

The Court maintains that, “[s]tanding alone,” the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer” the question presented in these cases. Ante, at 7. Instead, says the majority, we must look beyond the text to precedent, statutory context, and purpose — which apparently converge to persuade the majority that §924(e)(2)(A)(ii) requires sentencing courts to apply the drug schedules in effect at the time of a defendant’s prior state drug conviction when determining the applicability of the 15-year mandatory minimum in the Armed Career Criminal Act (ACCA). But the relevant text does definitively answer the question presented here. And it establishes that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application. Nothing else — not precedent, context, or purpose — requires a different result. Therefore, I respectfully dissent.

I am hopeful, but not especially optimistic, that a faculty meeting and other commitments will not prevent me from fiding time in short order to review these opinions closely.

Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

What might be called the rise and fall of former Baltimore City State's Attorney Marilyn Mosby has way too many chapters and elements to cover adequately in this space.  But, tomorrow morning, her story formally becomes a sentencing story as U.S. District Judge Lydia Griggsby holds a hearing to sentence Mosby on multiple charges.  (Quirky side note: I went to high school with Judge Griggby, but I have not spoken with her in decades.)  This local news piece provides just a small window into some of the tales of Mosby:

Former Baltimore City State's Attorney Marilyn Mosby is just days away from her sentencing, months after juries in two separate trials convicted her on counts of perjury and mortgage fraud. Mosby has claimed these charges were politically and racially motivated. She even mounted a national campaign in the last few weeks for a presidential pardon.

In November and February, juries found Mosby guilty for lying in regard to a vacation home mortgage and for withdrawing from her retirement account early under the pretense of covid-related hardship.

In a court filing Monday, Mosby's attorneys continued to call for an alternative to prison time, like probation, citing the negative impact on her kids as a reason.

But, Mosby has also been stumping hard for a pardon from Pres. Joe Biden -- appearing on MSNBC and the nationally syndicated radio show The Breakfast Club. "I have been accused of doing something I have not done. I'm innocent. I'm facing 40 years for withdrawing funds from my retirement savings," Mosby said on The Breakfast Club. "The United States government, a global superpower, is coming for me."

Prosecutors have called for 20 months of prison time. In court filings, prosecutors have criticized Mosby's press tour. "She has displayed no remorse; she accepts no responsibility; she has no regrets for her actions; and she has consistently worked to undermine public faith in the justice system for her own benefit," prosecutors said in the filing.

In response to prosecutors, Mosby's attorneys said in court filings that, "Ms. Mosby has every right to maintain her innocence indefinitely."

More than a dozen civil rights organizations have pledged support for Mosby's pardon, as well as a number of high-profile names. One of the most recent names to support Mosby is Bernice King, the daughter of Martin Luther King Jr....

Prosecutors have also filed to seize her condo in Longboat Key, Florida. Mosby's attorneys said in court filings the government hasn't proved it's entitled to do that.

I have seen a lot of press pieces providing very different accounts of Mosby and her activities, and it will be interesting to see how Judge Griggsby sorts through persistent disagreements about the facts at sentencing. Long-time readers know I often see the mid-point of the parties' sentencing recommendation to serve as a reasonable over/under for any sentencing prediction.  So perhaps 10 months is a reasonable guess for how Judge Griggsby will weigh the 3553(a) factors here, though I have not followed the prior proceedings in this matter closely enough to make a truly informed prediction.

I assume Mosby is planning to appeal her convictions.  If Judge Griggsby imposes a relatively prison term, I am sure Mosby would seek bail pending appeal (which likely will be granted).  Consequently, even if a prison term were imposed, it could be a while until Mosby woud be required to report to prison (and, of course, calls for clemency would surely grow in that period). 

US House votes, with overwhleming bipartisan support, for "Federal Prison Oversight Act"

As reported here at Reason, the US House of Representatives prove last night that bipartisanship is not entirely dead: "The U.S. House of Representatives passed a bill Tuesday night by a nearly unanimous vote to create independent oversight of the scandal-ridden federal prison system."  Here is more (with links from the original):

By a vote of 392-2, the House passed the Federal Prison Oversight Act, a bill introduced by Reps. Lucy McBath (D–Ga.) and Kelly Armstrong (R–N.D.) that would require the Department of Justice's inspector general to conduct detailed inspections of each of the 122 facilities in the Bureau of Prisons (BOP) system, and, more significantly, create an independent Justice Department ombudsman to investigate complaints from inmates and staff.

"Incarcerated Americans should not fear death when they enter our Federal prison system, and correctional officers should not fear for their safety in their workplace," McBath said in a press release.  "Our Federal prisons must serve as institutions that rehabilitate and prepare Americans for reentry into society, and that cannot happen without putting meaningful accountability measures in place."

A companion bill has been introduced in the Senate by Sens. Jon Ossoff (D–Ga.), Mike Braun (R–Ind.), and Senate Majority Whip Dick Durbin (D–Ill.).

The Bureau of Prisons has been dogged by chronic understaffing, crumbling facilities, and scandal.  There have been high-profile deaths like Whitey Bulger and Jeffrey Epstein.  Reason has documented numerous cases of atrocious medical neglect, including one that a federal judge called "inconsistent with the moral values of a civilized society." And the BOP announced in April that it was shutting down a women's prison where eight employees so far, including a former warden, have since been convicted or pleaded guilty to sexually assaulting incarcerated women under their control. 

The legislation was first introduced in 2022, shortly after a Senate committee released the results of an investigation into widespread corruption and abuse at a federal prison complex in Atlanta.  Congressional investigators found that senior leadership at both the complex and the Bureau of Prisons (BOP) had been aware of the problems for years but failed to act.

"My bipartisan Senate investigations of corruption, abuse, and misconduct in the Federal prison system have revealed an urgent need to overhaul Federal prison oversight," Ossoff said in a press release. "I now urge Senate leadership to bring our bipartisan bill for a vote and send it to the President's desk."

The cover-up culture exposed by the Senate is widespread and deeply rooted in the BOP, and it operates against both inmates and whistleblower employees.  In 2021, the BOP closed down a minimum-security women's camp in Florida.  A Reason investigation detailed how a cadre of guards at the camp abused incarcerated women with impunity for years, and how those guards were allowed to retire and escape prosecution, despite giving sworn statements to investigators admitting to assaulting inmates.

Not-quite-last call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  As detailed below, the "soft" deadline for receiving drafts for this FSR issue is next week (though we may have a bit of flexibility depending on the number of submissions).  So, though I expect the true last call for submissions will be next week, anyone planning to submit a draft that migth need a little extra time should eb sure to let me know of their plans.  And, for full effect, here are some of the specifics of the call:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

"Padilla's Broken Promise: Pennsylvania Case Study"

The title of this post is the title of this new article authored by Mikaela Wolf-Sorokin, Liz Bradley and Whitney Viets (which caught my eye, in part, because I am in the Keystone state today for this event). Here is its abstract:

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings.  Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level.  This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions.  Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations.  Each Pennsylvania county has an individual method of identifying noncitizen clients, analyzing immigration consequences, warning clients of these adverse consequences, and negotiating with district attorneys.  The scope of advice provided to noncitizens and counsel’s understanding of their Padilla obligations vary considerably in both content and scope.  Counties suffer from Pennsylvania’s systemic failure to provide adequate funding to public defense offices to ensure that they can effectively comply with Padilla — a problem that is especially salient in a state with limited postconviction remedies for those who receive deficient advice. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania.  While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

The Sentencing Project releases updated report on "Mass Incarceration Trends"

The Sentencing Project has today released this new 19-page document titled "Mass Incarceration Trends."  The report is full of data and visuals covering topic ranging from "Mass Incarceration’s Reach" to "Probation and Parole" to "Life and Long-Term Imprisonment" to "Voting Rights" to lots of topics in between.  Here is a small portion of the report's first section:

The United States is unparalleled historically and ranks among the highest worldwide in its dependence on incarceration.  Over five million people in total are under supervision by the criminal legal system.  Of these, nearly two million people, disproportionately Black, are living in prisons and jails instead of their communities.  Compare this to the figures of the early 1970s when this count was 360,000....

In 1972, the imprisonment rate was 93 per 100,000 people.  The prison population expansion that commenced in 1973 reached its peak in 2009, achieving a seven-fold increase over the intervening years.  Between 1985 and 1995 alone, the total prison population grew an average of eight percent annually.  And between 1990 and 1995, all states, with the exception of Maine, substantially increased their prison populations, from 13% in South Carolina to as high as 130% in Texas.  The federal system grew 53% larger during this five-year period alone.

The number of people in prison began a marginal decline beginning in 201013 and continued along this course for more than a decade, including a remarkable 14% decline in 2020 alone, which was principally caused by accelerated releases and reduced admissions during the first year of the COVID-19 pandemic.  The year 2022, however, marked the first year in more than a decade where the prison population rose again, by two percent, led by increases in 36 states and the federal government.  Mississippi alone raised its population of imprisoned persons 15% between 2021 and 2022.

"Misdemeanor Declination: A Theory of Internal Separation of Powers"

The title of this post is the title of this new paper authored by Alexandra Natapoff and available via SSRN.  Here is its abstract:

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest.  This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant.  It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch.  In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline.  It is therefore a unique structural moment of institutional and constitutional significance.

Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch.  This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment.  Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive.  The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool.  It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people.

In our massive misdemeanor system, this regulatory promise usually fails.  Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police.  Misdemeanor declination rates are typically very low — often less than five percent — which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime.  This is not how the criminal system is supposed to work.  In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained.  Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability.  Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

Event at Villanova this week follows up Federal Sentening Reporter issue on "Drug Testing and Community Supervision"

I am pleased here to be able to highlight both the latest issue of the Federal Sentencing Reporter and this event slated for this Wednestday (5/22) at Villanova Law serving as a follow up to this FSR issue.  This FSR issue is titled "Drug Testing and Community Supervision: Interrogating Policy, Practice, and Purpose," and it includes nearly a dozen original articles looking drug testing of persons while on community supervision from a variety of perspectives.  Here are the Editors' Notes previewing the contents of the FSR issue:

The supervision of individuals serving probation and parole never receives quite the same attention as incarceration topics, but millions of persons in our communities deal with these realities every day.  In particular, drug testing for persons on community supervision affects many of the nearly four million people on probation and parole in the United States, even though the justification for its use and its burdens are not always clear and rarely subject to significant scrutiny.  This issue of FSR, which results from the collaborative efforts of Arnold Ventures, the Center for Justice Innovation, the Drug Enforcement and Policy Center at The Ohio State University, and the Villanova University Charles Widger School of Law’s Girard-diCarlo Center for Ethics, Integrity and Compliance, takes a closer look at what an evidence-driven and humane approach to drug testing under supervision might look like.  The FSR editors are grateful for the collaborative efforts that helped produce this issue, and we extend special thanks to Matt Watkins and Oliva Kramer of the Center for Justice Innovation for their efforts assembling and editing the articles that comprise this issue.

And here is the registration page for the Vilanova Law event, which provides these (and other) particulars:

"Testing Justice: Drug Testing and Community Supervision"

Presented by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance Wednesday, May 22, 4:00–6:00 p.m.

In an effort to address and shape public conversations about criminal justice, drug policy and enforcement, the Girard-diCarlo Center will host a discussion on Wednesday, May 22 at Villanova Law. “Testing Justice: Drug Testing and Community Supervision” is a continuation of the conversations held at the convening in November 2023, the recent issue of the Federal Sentencing Reporter and the ethics, policies and laws surrounding drug enforcement in Pennsylvania.

The Pennsylvania Continuing Legal Education Board has approved this symposium for 1.5 Substantive CLE credits. Please note registration is required to receive CLE credit.  A reception will follow the event in the Ambassador David F. Girard-diCarlo ’73 and Constance B. Girard-diCarlo ’74 Student Lounge.

4:30–6:00pm Panel: The Pennsylvania Experience

• Sen. Camera Bartolotta, Pennsylvania State Senate for the 46^th District
• Jordan Hyatt, Director of the Center for Public Policy & Associate Professor of Criminology and Justice Studies, Drexel University
• LaTonya Myers, Founder, Above All Odds
• N. Jeannette Palmer-Briscoe, Chief Probation/Parole Officer, Philadelphia Adult Probation & Parole Department
• Sen. Anthony Williams, Pennsylvania State Senate for the 8^th District
• Moderated by Steven Chanenson, Faculty Director of the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance & Professor of Law, Villanova Law

Notable new accounting of parole practices in Virginia

The digital magazine Bolts has this new article about parole in Virginia under the headline, "Under Glenn Youngkin, Parole in Virginia Has Nearly Vanished."  The full piece has all sorts of detailed stories and some data about old and new parole practices in the Old Dominion state.  Here are short excerpts from a lengthy piece:

Under past Democratic administrations, Virginia already had one of the harshest parole systems in the nation, with single-digit annual approval rates.  But parole grants have declined even further since Republican Governor Glenn Youngkin began to overhaul the parole board in 2022, dipping to an approval rate of just 1.6 percent in 2023.  So far this year, Youngkin’s parole board has approved only eight of the 628 applications it considered, a grant rate of 1.3 percent, according to Mother Jones’ and Bolts’ analysis.  In March, ... the board approved only 2 out of the 117 cases it considered....

Parole board decisions could soon at least become less opaque in Virginia.  Last year, Youngkin signed a bipartisan transparency bill into law that the ACLU touted as “the biggest reform of Virginia’s parole system since 1994.”  Under the new law, which takes effect in July, the board will have to publish more regular detailed reports with individualized reasons on grants and denials, and parole review hearings will be required to include interviews with candidates themselves.  The bill also gives parole applicants and their attorneys access to all of the information being considered by the board.

"A Critical Assessment of the First Step Act’s Recidivism-Reduction Measures"

The title of this post is the title of this new article authored by Raquel Wilson that was recently published.  Here is its abstract:

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually.  The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons (“BOP”) by allowing participants to earn additional time credits that reduce their sentence.  Yet Congress excluded from its incentive program many violent offenders as well as others convicted of non-violent offenses relating to immigration and drug trafficking.  This Article argues that this exclusion was a critical mistake for several reasons: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for offenders who pose the highest risk of recidivism, including violent offenders; (2) Given limited resources in the BOP, incentivizing participation among only non-violent offenders will likely result in less programming for violent offenders; (3) The BOP already exhibits significant shortcomings in its ability to properly calculate release dates, and forcing the BOP to calculate time credits based on a complex list of excluded offenses will only create additional administrative burdens that may result in more inaccuracy in release dates; and (4) In creating a politically-driven list of excluded offenders, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.

A better approach would be a simpler, more straightforward one that would be easier for the BOP to administer and that would incentivize participation of all people in prison who will be released into local communities.  Congress has expert bodies with which it can consult, including the social science arm of the Department of Justice and the United States Sentencing Commission.  Allowing expert bodies to make decisions and recommendations can insulate both Congress and the President from the political backlash that sometimes hampers meaningful criminal justice reform. Finally, federal judges can be trusted with release decisions.  Judges demonstrated strong adherence to Sentencing Commission guidance when ruling on compassionate release motions once Congress allowed people in prison to file for early release under that statutory provision.  Congress should consider creating a second-look provision that would allow federal judges to apply Commission guidance to early release petitions, taking into account successful completion of recidivism-reducing programs.

Notable (and notably unclear) accounting of possible impact of retroactive application of new guideline amendments

The US Sentencing Commission has sent to Congress a handful of new guideline amendments that reduce the guideline range for some individuals (details here).  That means the USSC is statutorily required to decide whether these amendments should be applied retroactively to persons currently incarcerated.  Before a vote on retroactivity, the USSC staff typically prepares a retroactivity impact analysis to aid the USSC's deliberation over retroactivity, and this past Friday the USSC made public this 21-page document titled "Analysis of the Impact of Certain 2024 Guideline Amendments if Made Retroactive" (hereinafter "retroactivity memo").

The highest-profile amendment to be considered for retroactivity is on acquitted conduct, which redefines relevant conduct to exclude conduct for which the defendant was criminally charged and acquitted in federal court.  The retroactivity memo notes that the USSC staff estimated "that 1,971 persons currently incarcerated in the BOP were acquitted of one or more of the charges against them."  (Notably, that's not much more than 1% of the current federal prison population.)  But, as the retroactivity memo further explains, USSC research staff were "unable to determine whether and to what extent the courts may have relied upon any of the offense conduct related to the charge or charges for which the individual was acquitted in determining the guideline range; therefore, staff cannot estimate what portion of approximately 1,971 persons might benefit from retroactive application of the amendment."

I suspect only a limited percentage of persons who were acquitted of some charge could show that their guideline ranges were enhanced based on acquitted conduct.  But this reality, in my view, should make the Commission all that much more willing to have its new acquitted conduct guideline applied retroactively.  Though acquitted conduct guideline enhancements are relatively rare, those now serving prison time based on acquitted conduct ought to have a chance to argue for a reduced sentence.

Interesting, the retroactivity memo also details at length that all the other guideline amendments that might be made retroactive this year also have all sorts of data uncertainty regarding the reach of retroactivity.  Here is a cursory accounting drawn from the retroactivity memo: (a) one amendment restricting a 4-level enhancement applicable when a firearm's serial number of a firearm has been “altered or obliterated” could apply to as many as 1,452 current federal prisoners, but the amendment functions so that USSC "staff cannot determine in which of the 1,452 cases" might be impacted by the amendment"; (b) another amendment concerning the grouping rules for firearm offenses could impact "102 cases that met the criteria" of the new guideline, but the fact-specific nature of the grouping rules [meant] staff cannot determine with precision the cases in which the grouping rules might have been applied in a manner inconsistent with the amendment"; (c) another amendment to restrict how the drug guidelines should be calculated could impact "538 of those persons [who] were sentenced using a Base Offense Level" a certain way, but "staff cannot determine in which of the 538 cases the court may have applied a BOL" this way.

Long story short, it is clear that not very many current federal prisoners could possibly be impacted by making new guidelines retroactive (likely less than 2% of the current BOP population), but it is actually quite unclear if any significant number of current prisoners would benefit.  Whether and how these small numbers and the data uncertainty might impact the Commission's retroactivity decision remains to be seen.

"Does quadriplegic inmate deserve compassionate release after 49 years?"

The question in the title of this post is the headline of this editorial from a Pennsylvania paper.  The editorial seems to answer the question in the affirmative, and here are excerpts:

Ezra Bozeman was convicted of second-degree murder in 1975. The jury came to that decision 10 months after the crime occurred, when Morris Weitz was shot and killed during a robbery at a dry cleaner’s shop in Pittsburgh’s Highland Park neighborhood.

Bozeman was sentenced to life in prison. He has maintained for 49 years that he is innocent. He has appealed to the state Supreme Court. He has filed eight Post Conviction Relief Act petitions. None of that matters. Not really. Not anymore.

Those in his corner say he has been a model prisoner, counseling and mentoring others. That doesn’t matter either.

Bozeman’s doctor says the inmate is dying. Since February, he has been a quadriplegic. After 49 years locked in a cell, he is now locked in his own body.

But that doesn’t matter to the Allegheny County District Attorney’s Office either. In a hearing Tuesday, Deputy District Attorney Ronald M. Wabby Jr. argued against compassionate release for Bozeman. The reason? Wabby said there’s “no evidence to support their petition.”

Allegheny County Common Pleas President Judge Susan Evashavik DiLucente will be scheduling another hearing to take testimony from Bozeman’s physician.  Perhaps that will suffice. Gov. Josh Shapiro, the former Pennsylvania attorney general, supports the release.  The judge says she is inclined to agree.

Bozeman, 68, would not be released to go on a crime spree.  Quadriplegics cannot move any of their four limbs. He can move nothing below his neck. He requires a colostomy bag.  His attorney spoke of a pressure sore that reaches bone because the medical staff at SCI-Laurel Highlands cannot provide the kind of care someone in this condition requires.  A National Institutes of Health study claims the cost of acute care for a quadriplegic can top $500,000. It can require constant care a prison is not prepared to provide. There are bottom-line financial reasons to release a man who has been in prison since the Ford administration.

I find it interesting, though not uncommon, to see discussion of a compassionate release request framed in terms of what the inmate might "deserve."  But if rretributive desert is really what's most important in these casess, then the specifics of the crime, claims of innocence and post-crime behavior would all matter.  Yet this editorial, with its focus this inmate's apparent inability to commit future crime and the high costs of his care, is really building a case for release based on utilitarian concerns rather than retributivist ones.  Still, I understand why asking whether it would be sensible for society/Pennsylvania to grant compassionate release does not have quite the same ring as asking if an inmate "deserves" release.

Meanwhile, this lengthy news article about the case highlights that some medical testimony is in dispute, and it provides some useful data and context concerning Pennsylvania's recent compassionate release history:

Since 2016, the most recent for which data was available, through the end of 2023, 74 petitions for compassionate release were filed by Department of Corrections inmates.  Of those, 44 were granted, 10 were denied, and seven were otherwise withdrawn. In the same time, 13 people died waiting for decisions.

That’s not uncommon, according to Nishi Kumar, an attorney and head of medical-legal projects at the Medical Justice Alliance, an organization of physicians that work with incarcerated people. Many states have strict definitions of who can be released under compassionate release statutes, and some people are deemed “not sick enough.”...

So far in 2024, nine petitions have been filed in Pennsylvania, and five have been granted. One person died during the court process. Two are pending, including Bozeman’s. The number of compassionate release petitions filed each year has increased: from three or four each year to 13 in 2022 and 18 in 2023. Some of that could be because of continued pushes for criminal justice reform and increased attention on cases similar to Bozeman’s.

Spotlight PA, a nonprofit Pennsylvania news outlet, profiled Raymond Caliman in early 2022. At 68, an infection had left him bedridden and deteriorating but not at imminent risk of dying. After Spotlight’s piece published, the Abolitionist Law Center took up Caliman’s case, and he was ultimately released to hospice care in Philadelphia. He died less than two months later.

Pennsylvania has just under 40,000 persons in its prisons; even with the recent uptick in compassionate release petitions, it seems far less than 0.05% are seeking this release each year in the Keystone State.