Sentencing Law and Policy

Another report on how pardon possibilities are impacting Jan 6 prosecutions

Politico has this new article providing another account of how Prez-Elect Donald Trump's Jan 6 pardon pledges are echoing through Jan 6 criminal cases. The full title of the piece captures its themes: "Judges push back as Trump’s return sparks defiance from Jan. 6 defendants: In multiple sentencings Friday, judges saw firsthand how attentively some Jan. 6 perpetrators heed their reprimands. (Which is to say, not at all.)" Here are some excerpts:

A vibe shift sparked by Trump’s imminent takeover of Washington has begun seeping into the marble halls of the federal courthouse, where nearly 1,600 members of the Jan. 6 mob have faced charges. On Friday, at four sentencing hearings, judges appointed by presidents of both parties wrestled with their warnings about the fragility of democracy while bracing for Trump to make good on his promise to pardon many of those they say perpetrated one of the greatest domestic threats in American history.

“The lie that the [2020] election was stolen is still being disseminated,” said U.S. District Judge Amy Berman Jackson, who also excoriated efforts by some Jan. 6 defenders to label the perpetrators “hostages” or “victims” of an abusive government. Jackson didn’t mention Trump by name but said storming the Capitol “at the direction of a disappointed candidate” was “the definition of tyranny and authoritarianism.” Far from dying down over the past four years, the Barack Obama-appointed jurist said at a sentencing hearing Friday for a member of the Proud Boys: “The volume’s getting turned up.”

Down the hall, one of the most prominent members of the Jan. 6 mob — Texas’ Guy Reffitt — was doing just that, lambasting the “bullshit” he said was coming from the judge in his own case, Trump-appointed U.S. District Judge Dabney Friedrich.

Reffitt, who has been in prison since early 2021, said he had been “in my feelings” for the last four years as a result of Biden’s victory. “Trump is now going to be the president of the United States,” Reffitt said as he attacked the case against him in an expletive-laden tirade. “I’m out of my feelings.”

Friedrich, who re-sentenced Reffitt to nearly seven years in prison, worried that he had become increasingly entrenched in his lack of remorse for his role at the vanguard of the riot. Reffitt, she said, “does seem to revel in his status” as a hero to the small but vocal group of Jan. 6 defenders and “loves the J6 family dynamics.”...

For many Jan. 6 defendants and their allies, the judges’ admonitions are increasingly falling flat. Many of them, emboldened by Trump’s rise, openly shrug the warnings off. As Reffitt walked out of the courtroom to be returned to prison, Brandon Fellows — who served most of a 3.5-year sentence for surging into the Capitol and putting his HTML feet on a senator’s private desk — called to him: “Guy, you’ll be out soon.”

Other defendants, too, have begun to feel the momentum swing in their favor, often trading sentiments of remorse in favor of defiance and confidence that Trump will soon swoop in to spare them any prison time.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants 
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Major-Questions Lenity"

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

There is a fundamental connection between the historic rule of lenity and the new major questions doctrine.  At their core, both doctrines reflect a commitment to the separation of powers on important questions of policy.  In light of that shared justification, the logic of the newly articulated major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context, and the major-questions framework is strikingly similar to a rationale that has begun to emerge in some of the Supreme Court’s recent decisions adopting narrow constructions of federal penal statutes.  That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine.

The Court significantly weakened lenity in the mid-twentieth century, and it now plays virtually no role in the construction of federal penal statutes.  Instead, the Court relies on a set of more targeted interpretive tools for narrowly construing certain penal statutes.  The practical effect is a regime of partial leniency that deprioritizes the generic separation-of-powers value on which historic lenity was based while elevating more targeted concerns.  As a result, for most penal statutes, the principle that clear crime definition is the legislature’s obligation has been lost, and outcomes often turn on whether courts will exercise implicitly delegated lawmaking authority to adopt narrow constructions on a largely discretionary and ad hoc basis.

A robust major-questions lenity would work to restore historic lenity’s insistence on legislative clarity in crime definition.  It would promote the separation of powers by disciplining prosecutors, courts, and ultimately Congress.  Major-questions lenity would substantially limit the practice of implicit delegation of crime definition and help to curb the adoption of overly broad and literalistic constructions of penal states in the lower courts.

Are "pragmatic prosecutors" now the next big thing?

The question in the title of this post is promoted by this new piece from Lisel Petis over at R Street, which is titled "Move over progressive prosecutors, pragmatic prosecutors are the new 'it' thing."  Though I have never been an "it" thing, I do sometimes think of myself as pragmatic, so I am intrigued by this latest prosecutorial version of "new Coke."  I recommend the piece in full, and here is how it gets started (with links from the original):

If you follow the arc of criminal justice over the past few decades, you can see clear trends emerge. From the “tough on crime” era of the 1980s and 1990s that fueled mass incarceration to the progressive wave advocating sweeping reforms that were intended to keep more people out of jails and prisons, the pendulum has swung dramatically in just a short period of time.  But now we are entering what might be a “sweet spot” that better balances fairness and safety. Evidence of this trend is apparent in a new kind of prosecutor popping up in states across the country. 

Despite a recent drop in national crime rates—and drastic reductions since the 1990s — public concern about crime and safety remains high.  High-profile incidents, sensationalized media coverage, and a rise in homelessness have fueled a perception that crime is getting worse.  Much of the blame has been directed at so-called “soft-on-crime” policies and progressive prosecutors, whose reforms — such as reducing the use of cash bail, diverting low-level offenders from the system, and shorter sentences — are often criticized as prioritizing offenders over victims.

Enter the pragmatic prosecutor. This “new” type of prosecutor isn’t about choosing sides between punitive crackdowns or lenient approaches. Instead, they are reimagining justice as a complex ecosystem that requires strategic, targeted interventions that draw from the strengths of both philosophies.

Another week with another notable set of prison headline and stories

A number of notable and mostly disheartening press pieces aabout prison realities caught my eye this week, and here is a round up:

From the AP, "The US government is closing a women’s prison and other facilities after years of abuse and decay"

From the AP, "Justice Department announces sweeping reforms to curb suicides in federal prisons and jails"

From Cleveland.com, "‘Wreaking havoc’: Cleveland gang emulated Mafia, killed man and ran drug-ring, feds say"

From The Guardian, "Inmates burn themselves in protest at ‘inhumane’ Virginia prison conditions"

From Honolulu Civil Beat, "The Mental Health Crisis In Hawaii’s Prisons: ‘The Suicides Keep Coming’"

From the Marshall Project, "After Jail Deaths and No Justice, This Kentucky Lawyer Tried to Make a Difference"

From Stateline, "State prisons turn to extended lockdowns amid staffing shortages, overcrowding"

Federal judge rejects latest plea deal between Boeing and the US government

As reported in this CNN piece, a "federal judge on Thursday rejected a plea agreement between Boeing and the US government after the company said it would plead guilty to deceiving the Federal Aviation Administration ahead of two fatal 737 Max crashes." Here are the basics:

The rejection by US District Court Judge Reed O’Connor citied his problems with the selection process for a independent monitor required in the plea deal to oversee safety and quality improvement at Boeing.

Boeing agreed in July to plead guilty to one charge of conspiracy to defraud the United States. Under the plea agreement it would pay up to $487 million in fines — a fraction of the $24.8 billion that families of victims of the two crashes want the company to pay.

O’Connor had problems with the idea that the Justice Department, not the court, would have approval over the selection of the monitor and how Boeing had performed under an earlier settlement with the Justice Department in January 2021 over the same charges.  That agreement had deferred prosecution until the safety issues were again raised by a door plug blowing off a 737 Max plane flown by Alaska Airlines in January.

“It is fair to say the government’s attempt to ensure compliance has failed,” O’Connor wrote in his opinion. “At this point, the public interest requires the court to step in. Marginalizing the court in the selection and monitoring of the independent monitor as the plea agreement does undermines public confidence in Boeing’s probation.”  One of O’Connor’s problems with the plea agreement was that the Justice Department had said Boeing and Justice would have to consider race when hiring the independent monitor. But he also was upset that the court did not have a role in the selection process....

“Rejection of the plea deal is an important victory of the families in this case and, more broadly, crime victims’ interests in the criminal justice process,” said Paul Cassell, attorney for family members of crash victims, in a statement. “No longer can federal prosecutors and high-powered defense attorney craft backroom deals and just expect judges to approve them. Victims can object – and when they have good reasons for striking a plea, judges will response.”

“This order should lead to a significant renegotiation of the plea deal to reflect the 346 deaths Boeing criminally caused and put in place proper monitoring of Boeing to ensure that it never again commits a crime like this in the future,” he added.

The full 12-page order from Judge O'Connor is available at this link.

Prior related post:

• Could families of crash victims disrupt the latest plea deal Boeing has accepted from the feds?
• Crash victims' families formally object to proposed Boeing plea deal 

Lots of news and new resources from the US Sentencing Commission

Via email yesterday afternoon, I received news of a number of new items coming from the US Sentencing Commission.  Drawing text and links from the email, here are just some of items with a few links:

Notice of Public Meeting

The Commission has scheduled a public meeting for Thursday, December 19, 2024 at 2:00 pm (EST)he meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby).  The Commission will livestream and record this event.

The agenda follows:

• Vote to Adopt August 2024 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment....

Preliminary FY24 Fourth Quarterly Data Report 

The Commission released its first full look at the FY24 federal sentencing caseload.

Preliminary Data Highlights

• In FY24, 61,137 individuals were sentenced federally — representing a decrease from the previous fiscal year.
• Nearly equal proportions of individuals were sentenced for a drug (30.0%) or immigration (29.7%) offense.
• Methamphetamine was the most common drug involved in federal drug offenses (45.8%) followed by fentanyl (21.8%) and powder cocaine (19.4%). 

2023 Firearms Amendments

Commission staff break down the 2023 changes and additions to the firearms guideline, including new offenses and increased penalties. They answer frequently asked guideline questions about proliferation of firearm switches and auto sears, and more.

Robbery Primer

This primer offers an overview of statutes, sentencing guidelines, and case law related to selected federal robbery offenses.

"Compassionless Plea Bargaining"

The title of this post is the title of this new paper authored by Julian Cook available via SSRN. Here is its abstract:

Too often, the guilty plea hearing process practiced in our federal courts fails to adequately ensure the validity of a defendant's change of plea decision.  Rather than engage in colloquies that are sufficiently in-depth and truly aimed at ascertaining voluntariness and defendant comprehension, critical details are frequently glossed over, and defendant guilty pleas are accepted without meaningful inquiry.

While academics have skillfully critiqued the Sixth Amendment and its trial-focused provisions, comparatively scant focus has been expended on the equally, if not more, critical change of plea hearing.  Compassionless Plea Bargaining seeks to fill this gap with its focus on a recent controversy that threatened to engulf the Biden Administration's Department of Justice into an unfortunate — and arguably embarrassing — controversy.

In December 2018, President Donald Trump signed into law the First Step Act.  Designed primarily to address the nation's mass incarceration crisis, one of its more overlooked features was a provision that addressed sentencing modification.  Commonly referred to as compassionate release, the Act sought to ease the ability of defendants to obtain a modification of their sentence in the event of an extraordinary life circumstance.  During the COVID-19 pandemic, as the virus spread rapidly through correctional facilities, compassionate release requests predictably skyrocketed — and so did the workload of federal prosecutors tasked to respond to these motions.  As a result, many U.S. Attorney's Offices included provisions in plea agreements requiring defendants to forgo their compassionate release rights under the Act in exchange for the concessions offered by the government.  A brewing controversy ensued, with critics, including the National Association of Criminal Defense Lawyers, arguing that the government was leveraging its substantial negotiating power, and defendants were often agreeing to such waivers in the absence of a full awareness of the attendant consequences.  In response, Attorney General Merrick Garland discontinued the practice in March 2022.  However, the reprieve is likely to be short-lived, as future attorneys general will almost certainly resuscitate the practice.

The byproducts of a guilty plea are varied, deeply consequential, and, as evidenced in the compassionate release context, can even be fatal.  This Article explains why federal change of plea hearings too often fail to adequately assess the knowledge and voluntariness underlying a defendant's guilty plea and offers a proposal for reform.

Rounding up some coverage on whom Prez Biden should give clemency to next

In this post on Monday, I flagged a lot of early commentary focused on Prez Biden's decision Sunday night to pardon his son Hunter.   There has been, unsurprisingly, continuing discussion of this pardon and its echoes.  One theme to the next round of pieces that I find especially interesting concerns who else should get the benefit of Biden's clemency pen.  Here is a round up of some of these pieces: 

From the AP, "Joe Biden’s pardon of his son Hunter spurs broader discussion on who else should be granted clemency"

From Axios, "Congress hands Biden a huge Hunter-driven pardon wishlist"

From Forbes, "Here’s Who Else Biden Could Pardon Before He Leaves Office — Beyond Hunter Biden"

From Fox News, "Jeffries wants Biden to dole out pardons for people aggressively prosecuted 'for nonviolent offenses'"

From Fox News, "Who else might Biden pardon after he spared Hunter from sentencing?"

From the Independent, "Who else could Biden pardon?"

From Mother Jones, "Hunter Got a Pardon. Will Drug War Victims?"

From the New York Times, "After Biden Pardons His Son, Prison Inmates Hope They’re Next"

From the Washington Post, "The people Joe Biden should have pardoned along with his son"

From wbur, "Rep. Ayanna Pressley is calling on Biden for more sweeping pardon action"

As I have mentioned before, folks interested in broader clemency matters may want to check out my recent Sentencing Matters Substack post on clemency traditions.  In addition, there is still time to regster for this timely December 10 event I will be moderating on federal clemency topics titled "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power."   

Prison Policy Initiative releases its latest annual view of "Winnable criminal justice reforms"

The folks at Prison Policy Initiative have made an annual tradition of releasing a significant report looking forward to reform policy and politics in the new year.  The latest variation, available here, is titled "Winnable criminal justice reforms in 2025," and here is the report's introduction and linked TOC:

In this year's guide to winnable criminal justice reforms, we've added new information on solitary confinement, fines and fees reform, decriminalizing traffic offenses, and so-called "truth in sentencing" laws.  We've also updated all of our sections with new example bills, resources where you can learn more, and we've reorganized our guide to make it easier to find the reforms you're interested in.  While this briefing is not intended to be a comprehensive platform, we've curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and reversing harms experienced by people impacted by the criminal legal system, without further investments in that system.

This year's guide to winnable criminal legal system reforms comes at a time when change feels like an uphill battle across the country. After the results of the 2024 election, advocates will likely have to work even harder to combat new policies that threaten to worsen mass incarceration.  For that reason, we've also included some talking points to use to fight back against the return of 1990's style "tough-on-crime" policies that will accelerate the growth of prison populations.

Because each state's criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one's own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more transformative.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

Expand alternatives to criminal legal system responses to social problems (6 recommendations)

Protect the presumption of innocence so people receive a fair shot at justice (2 recommendations)

Decrease the length of prison sentences and provide pathways for all people to exit prison (5 recommendations)

Treat people humanely during incarceration (6 recommendations)

Treat people on community supervision fairly, and keep them thriving in the community (4 recommendations)

Set people up to succeed when they exit prisons and jails (4 recommendations)

Give incarcerated and formerly incarcerated people political representation and voice (4 recommendations)

Reduce spending on the criminal legal system and increase investments in communities (3 recommendations)

Tips to fight back against the return of 1990's style tough-on-crime measures

"Punishment and Resources"

The title of this post is the title of this new book chapter authored by Mark White and available via SSRN. Here is its abstract:

Philosophers of punishment have paid little attention to resource constraints, which have an undeniable impact on how various approaches to punishment work in the real world.  It has fallen on economists, with their central focus on scarcity and opportunity cost, to analyze the resource demands of different philosophies of punishment.  However, the utilitarian nature of mainstream economics limits the scope of economic theories of punishment to deterrence, which fits naturally into mathematical economic techniques, as opposed to retributivism, the principled nature of which resists quantification. 

This chapter explores the resource implications of punishment.  It starts by identifying shortcomings of the economic analysis of deterrence, and then considers proposals from economists and legal scholars to incorporate resource constraints into retributivism, many of which introduce some degree of quantification or consequentialism.  The rest of the chapter proposes an alternative choice procedure, based on the theory of judicial decision-making of Ronald Dworkin, which enables incommensurate principles and goals to be considered and balanced against each other, with resource constraints serving a secondary role in resolving conflicts.  This way of including resource concerns into discussions of punishment emphasizes their importance while avoiding the reduction of all aspects of punishment to the terms of efficiency, which would distort their true nature and introduces unnecessary noise and inaccuracy to the analysis.

Missouri completes execution "only" 17 years after child murder

As reported in this AP article, Missouri this evening completed an execution of a man who sexually assaulted and strangled a 9-year-old girl in 2007. Here are some of the details:

Rowan Ford knew Christopher Collings as “Uncle Chris” after he spent several months living with her family. On Tuesday, Collings was executed for sexually assaulting and killing the child, then dumping her body in a sinkhole outside a small Missouri town.

Collings, 49, was put to death with a single dose of pentobarbital on Tuesday evening at the state prison in Bonne Terre, Missouri. The execution was the 23rd in the U.S. this year and the fourth in Missouri. Only Alabama with six and Texas with five have performed more executions in 2024....

Collings’ fate was sealed Monday when the U.S. Supreme Court turned aside an appeal and Republican Gov. Mike Parson denied clemency.... Parson, in a statement, said he hopes that “all those who knew and loved Rowan may find peace in knowing that justice has been done.”

Rowan was a fourth-grader described by teachers at Collings’ trial as a hard-working and happy student, a lover of Barbie who had her room painted pink. Collings was a friend of Rowan’s stepfather, David Spears, and lived for several months in 2007 at the home Rowan shared with her mother, Colleen Munson, and Spears. Collings sometimes helped Rowan with her homework.

Collings told authorities that he drank heavily and smoked marijuana with Spears and another man in the hours before the attack on Rowan, according to court records. Collings said he picked up the still-sleeping child from her bed, took her to the camper where he lived, and assaulted her. Collings planned to take Rowan back home, leading her outside the camper facing away from him so that she couldn’t identify him, he said in his confession. But when moonlight lit up the darkness, Rowan was able to see Collings, he told police. He said he “freaked out,” grabbed a rope from a nearby pickup truck, and strangled her.

Given that modern average times between death sentences and executions is now about 20 years, it seems notable that Missouri completed this execution "only" 17 years after the offense.

"The Meaning of Life, In Michigan: Mercy from Life Sentences Under the State Constitution"

The title of this post is the title of this new paper authored by David Shapiro and Molly Bernstein available via SSRN.  Here is its abstract:

Properly understood, the “cruel or unusual” punishment clause of the Michigan Constitution grants every person sentenced to life in prison a meaningful right to obtain release by making a convincing showing of rehabilitation. Today, however, Michigan has among the nation's largest populations of people serving both formal and de facto life sentences without any meaningful possibility of release.  Michigan’s current life-sentence regime therefore violates the state constitution.

In 1850, Michigan revised its constitution to prohibit “cruel or unusual punishment” creating a contrast with the conjunctive “cruel and unusual punishments” clause of the federal Eighth Amendment.  Under Michigan’s disjunctive prohibition, cruelty standing alone made a punishment “cruel” and thus unlawful.  But what made a sentence “cruel”?

Our analysis of sentencing and punishment practices immediately before and after the 1850 constitutional convention sheds light on this question.  Michigan abolished capital punishment in 1846, shortly before its 1850 constitutional convention.  Life in prison became the punishment for crimes previously punished by death.  These life sentences were “without parole” because no system of parole existed at the time.  But life sentences — indeed all prison sentences —  allowed a meaningful opportunity for release through a different and long-established mechanism: the pardon power. Liberal use of the pardon power was considered necessary to provide a meaningful opportunity to obtain release based on rehabilitation, thereby preventing life sentences from becoming “cruel” and thus unconstitutional.  According to accompanying executive statements, mercy (in particular, to prevent death in prison) and rehabilitation were among the primary bases for granting clemency from prison terms.

This historical record shows that, at the time, truly permanent or final, inflexible punishments did not exist.  Instead, for sentences both short and long, the necessity and efficacy of incarceration was always subject to review. Significant additional evidence confirms that, originally understood, it was cruel for the state to impose any punishment beyond that necessary to rehabilitate offenders — especially punishments that foreclosed the chance of rehabilitation entirely. For example, debates among delegates at the state’s 1850 constitutional convention reflect a shared understanding that the primary if not exclusive purpose of criminal sanctions was reformation, along with deep skepticism of any punishment that permanently excluded people from civil society.  This rejection of permanent prison terms prevailed in Michigan for well over 100 years. Through most of the 20th century, no one in Michigan was sent to prison without a chance of release. Instead, even people technically serving “life without parole” were routinely considered for and awarded release based on rehabilitation.  This longstanding practice confirms that permanent prison terms were not just needlessly cruel, but “unusual” to the point of nonexistent.

Yet today, as both executive clemency and parole grants have dwindled, Michigan has among the nation's largest populations of people serving both formal and de facto death-by-incarceration sentences, which we define as a life sentence unaccompanied by a meaningful opportunity to secure release by demonstrating rehabilitation.  With a focus on the role of clemency as a meaningful form of sentence review — particularly contemporaneous with the adoption of Michigan’s “cruel or unusual” anti-punishment clause — this article adds to the body of evidence showing that, according to the original meaning of Michigan's constitution, mandating death in prison is cruel and unconstitutional.

Rounding up just some early commentary on a father's pardoning

I was inclined to wait a bit before doing a round up of commentary on Prez Biden's decision last night to pardon his son Hunter. (For the record, I suspect Prez Biden made the decision to pardon Hunter a long time ago, but it was officially announced yesterday.)  And yet, I have seen so many notable pieces in less than 24 hours, I think an (abridged) round up cannot wait.  So:

From The Atlantic, "Biden’s Unpardonable Hypocrisy"

From The Bulwark, "In Defense of the Hunter Biden Pardon"

From Fox News, "President Biden's pardon of son Hunter a political gift for Trump going forward"

From Fox News, "Joe Biden's pardon of son Hunter cements his legacy as liar in chief"

From The Guardian, "With his pardon of son Hunter, Joe Biden delivers a heartfelt hypocrisy"

From MSNBC, "Joe Biden chose fatherly love over his duties as president"

From New York magazine, "Joe Biden’s Pardon of Hunter Is So Much Worse Than It Needed to Be"

From the New York Times, "Biden’s Pardon for His Son Dishonors the Office"

From The New Yorker, "Biden’s Pardon of Hunter Further Undermines His Legacy"

From Politico, "Joe Biden’s Parting Insult"

From Slate, "The Hunter Biden Pardon Is Defensible — and Perverse"

From the Washington Post, "Biden did what many fathers would do: Save his child"

Intriguing new data on jail admissions from Prison Policy Initiative and Jail Data Initiative

Via email I received work of this this new briefing from the Prison Policy Initiative, completed in collaboration with the Jail Data Initiative, which offers broad data on jail admissions and populations. The full title of this briefing provides a basic overview: "Who is jailed, how often, and why: Our Jail Data Initiative collaboration offers a fresh look at the misuse of local jails. Using a novel data source, we examine the flow of individuals booked into a nationally-representative sample of jails along lines of race, ethnicity, sex, age, housing status, and type of criminal charge." Lots of the data is interesting, with some suprising and others not-so-suprising. Here are a few excerpts from the start and heart of the work:

Millions of people are arrested and booked into jail every year, but existing national data offer very little information about who these people are, how frequently they are jailed, and why they are jailed. Fortunately, we now have new data through a collaboration with the Jail Data Initiative to help answer these questions: In 2023, there were 7.6 million jail admissions; but 1 in 4 of these admissions was someone returning to jail for at least the second time that year. Based on the Jail Data Initiative data, we estimate that over 5.6 million unique individuals are booked into jail annually and about 1.2 million are jailed multiple times in a given year.  Further analysis reveals patterns of bookings — and repeat bookings in particular — across the country: The jail experience disproportionately impacts Black and Indigenous people, and law enforcement continues to use jailing as a response to poverty and low-level “public order” offenses....

The Bureau of Justice Statistics last collected charge data for jail populations in their 2002 Survey of Inmates in Local Jails. Given that the most recent jail offense data is over 20 years old, the Jail Data Initiative dataset offers a rare opportunity to analyze the top charges that people are booked under nationwide. Of course, the difference in data sources makes a fully apples-to-apples comparison of the 2002 data and the more recent Jail Data Initiative data impossible.  The data provided in the Bureau of Justice Statistics survey reflects self-reported information from people detained in a sample of local jails on a single day in June 2002, while the Jail Data Initiative data is based on jail bookings across a two-year time period and relies on administrative data.  Nevertheless, the overall trends since 2002 offer some valuable insights into the reasons people are detained in jails today:

• Drug charges appear to play a smaller role now than they did two decades ago, when the “war on drugs” was in full effect. In 2002, a quarter of people in jail were held for drug charges, compared to 14% of people admitted to jail in our 2021-2023 sample.
• Property charges also appear to represent a smaller portion of the jail population now than they did in 2002: Property charges are the top charge for 19% of jail admissions, compared to 24% of the jail population in 2002.
• In 2002, public order charges were the top charge for 25% of people in jail, but now, 31% of people admitted to jail are booked for a most serious charge related to public order, such as disorderly conduct, loitering, and public intoxication.
• We see very little change in the proportion of people in jail for violent charges: in 2002, 25% of people were in jail for a violent charge and in our analysis of more recent jail bookings, about 26% of jail bookings were for violent charges.

George Santos, AG Garland's charging memo, Pam Bondi, oh my

My post title not only reflects my Ozian mood, but also my effort to get extra attention for this last banger post by Jonathan Wroblewski over at the Sentencing Matters substack.  The post lurks under the sly simple query in its title: "What Ever Happened to Attorney General Garland’s Charging and Sentencing Policy?".  What follow is a kittle something for everyone at this particular moment of Justice Department reflection, especially as it relates to charging/plea practices and mandatory minimums.  I highly recommend the post in full, and here are just a few tastes: 

The fact that the U.S. Attorney insisted on [George] Santos pleading guilty to a charge carrying a mandatory minimum imprisonment sentence – and that he proudly proclaimed it publicly – was a bit puzzling, to me anyway. You see at the beginning of the Biden Administration, my job in the bureaucracy was to lead a Department working group that examined a whole host of sentencing and corrections policies and recommended changes to many of those policies for the new Administration....

As part of that work, the working group teed up for Attorney General Merrick Garland a new charging policy, actually several different drafts. And after many months of deliberation, in December 2022, Attorney General Garland issued a new policy. If you are not familiar with it, you can read it for yourself here. Out in the open for all to see. It told federal prosecutors not to charge statutes carrying mandatory minimum imprisonment terms except in limited circumstances....

Of course, we know why the U.S. Attorney charged the aggravated identity theft counts, and we know why he insisted that one of those counts be part of the plea agreement. The U.S. Attorney stood up at a podium and told us why. He wanted to be certain that George Santos would spend at least two years in prison. He wanted to take some sentencing options out of the hands of the presiding judge....

Of course, now, with the election of President Trump and the soon-to-be-nomination of Matt Gaetz Pam Bondi to be Attorney General, the policy ritual [for developing a new DOJ charging memo] is sure to begin again. Maybe seeing his friend and sex party companion charged with child sex trafficking, a charge carrying a mandatory minimum term of imprisonment, will lead Gaetz to think twice before reinstating the Sessions’ memo. Notably, back in 2018, the year President Trump signed the First Step Act into law, Bondi led a bipartisan group of 38 state attorneys general supporting criminal justice reform in the federal prison system. So maybe she’ll think twice before reinstating the Sessions’ memo. We’ll see. And maybe Trump will pardon George Santos. I hear there’s still an opening for several Assistant Attorneys General.

One last point – the Garland memo also made a promise –

The Department will develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences. Until that time, each United States Attorney’s Office and litigating division must report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges.

The memo has been in place for about two years now. I don’t recall seeing any data from the Department on the implementation of the new policy. Have you? Did the Department ever develop and implement a software program that enables real-time, trackable reporting by districts and litigating divisions of all charges brought by the Department that include mandatory minimum sentences? Did it ever ask each United States Attorney’s Office and litigating division to report semi-annually to the Executive Office for United States Attorneys the number and percentage of charging documents and plea agreements in which it has included mandatory minimum charges?

Prez Biden issues full pardon to his son Hunter

Upon seeing this news as reported by the New York Times, under the headline "Biden Issues a ‘Full and Unconditional Pardon’ of His Son Hunter Biden," I am tempted to joke that Prez Biden decided to use the long holiday weekend to pardon one last turkey.  Here are the basics:

President Biden fully and unconditionally pardoned his son Hunter on Sunday night, using the power of his office to wave aside years of legal troubles, including a federal conviction for illegally buying a gun, and Republican attacks that hounded the Biden family throughout the last four years.

In a statement issued by the White House, Mr. Biden said he had decided to issue the executive grant of clemency for his son “for those offenses against the United States which he has committed or may have committed or taken part in during the period from Jan. 1, 2014, through Dec. 1, 2024.”

He said he did so because the charges against his son were politically motivated and designed to hurt the president politically. “The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election,” Mr. Biden said in the statement. “No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son — and that is wrong.”...

Many of the president’s allies and critics had expected him to use the unique authority vested only in his office, even though the president’s spokeswoman had denied for months that Mr. Biden had any intention of doing so. NBC News first reported Sunday evening that Mr. Biden had in fact decided to pardon his son.

The reversal by Mr. Biden came just 50 days before he is set to leave the White House and transfer power to President-elect Donald J. Trump, who spent years attacking Hunter Biden over his legal and personal issues as a part of series of broadsides against Mr. Biden’s family....

It is not the first time a president has used his executive power to commute the sentence of a family member. On his last day in office, President Bill Clinton pardoned his half-brother Roger Clinton for old cocaine charges. A month before leaving office, Mr. Trump pardoned his son-in-law Jared Kushner’s father, Charles Kushner, for tax evasion and other crimes.

Both Roger Clinton and Charles Kushner had long since completed their prison terms, and the pardons were about forgiveness or vindication rather than avoiding time behind bars. Over the weekend, Mr. Trump said that he would nominate Charles Kushner to be the U.S. ambassador to France.

The full statement from Prez Biden is available at this link, and it concludes this way: 

For my entire career I have followed a simple principle: just tell the American people the truth. They’ll be fair-minded. Here’s the truth: I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice -- and once I made this decision this weekend, there was no sense in delaying it further. I hope Americans will understand why a father and a President would come to this decision. 

I fully understand why a father would want to exempt a troubled son from the strictures of the criminal law, but I do not respect a President's decision to show grace here only to his child when there are many thousands of others who have sought clemency and arguably merit grace even more than does this father's privileged son.

Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants

In this post the morning after Donald Trump's election, I wondered aloud about how he might seek to make good on his campaign promises to pardon persons federally prosecuted for their behaviors at the Capital on January 6, 2021.  In that post, I noted that Trump's campaign team seemed eager to stress that Jan 6 clemencies would be decided "on a case-by-case basis."  But that statement raises all sorts of questions about what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants likely to seek clemency.

A new lengthy Politico article notes that adds further intrigue to this developing story under the headline "Trump promised Jan. 6 pardons. His post-election silence is making loyalists nervous."  I recommend the piece in the full, and here are excerpts (with links from the original):

Donald Trump campaigned on a pledge to pardon a vast swath of supporters who stormed the Capitol on Jan. 6, 2021. But his silence on the matter since winning the election has begun unsettling some fervent allies awaiting even the slightest signal from Trump about how he intends to turn his campaign rhetoric into reality.

Federal judges overseeing Jan. 6 cases have been left to guess at Trump’s plans. As a result, they have allowed nearly all cases to proceed, saying Trump’s clemency plans are merely “speculative.” Meanwhile, federal prosecutors have brought a handful of new Jan. 6 felony cases since Election Day, and they’ve argued repeatedly against efforts by defendants to delay their cases to await Trump’s inauguration.

The Justice Department has charged more than 1,500 people for their roles in the riot. Throughout the 2024 campaign, Trump repeatedly said he would pardon many of them. But he left the specifics unclear, and never said whether he might leave in place some prosecutions, particularly against people who assaulted police.

Now that he’s president-elect, his failure to say more has begun nagging at some of his die-hard supporters, who have engaged in a public guessing game on X about Trump’s intentions....  Adding to the anxiety expressed by some Jan. 6 defendants is a statement from Trump’s transition team that hinted at a far more limited approach than the sweeping pardons that many in Trump’s base have demanded.

“President Trump will make pardon decisions on a case-by-case basis,” incoming White House press secretary Karoline Leavitt said in the statement.  The meaning of “case-by-case” has morphed into a raging debate among Jan. 6 defendants and their allies....

[T]wo Trump allies in Congress — Reps. Marjorie Taylor Greene (R-Ga.) and Andy Biggs (R-Ariz.) — issued new calls this week for Trump to issue blanket pardons.  [Julie] Kelly, who has spoken with Trump and congressional Republicans about concerns with Jan. 6 prosecutions, has similarly called for a blanket pardon to address what she calls a “blanket denial of the due process rights of Jan. 6 protesters.”

Kelly suggested that Trump’s public silence belies an enormous amount of advocacy behind the scenes, but she said there are also “political sensitivities” about the notion of pardoning those with assault charges — even though she believes many such pardons would be justified....

[Pam] Bondi, Trump’s new pick to lead the Justice Department, has said nothing publicly about Jan. 6, the perpetrators of the Capitol attack or whether she agrees with Trump’s view of the riot.  [Suzanne] Monk, who is leading an effort called the J6 Pardon Project, has told allies she is working to open lines of communication with Bondi.  In the meantime, Jan. 6 defendants and allies have continued hoping and speculating.

For any and everyone interested in these issues and broader clemency matters, let me further recommend my recent Sentencing Matters Substack post as well as this December 10 event I will be moderating on federal clemency topics.

A few recent related posts:

• How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
• Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations 
• Imagining better clemency traditions than turkey pardons and lame-duck frenzies
• Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"

"Why Mass IncarcerationIs Uniquely American"

The title of this post is the title of this "ahead of print" article forthcoming in the journal Crime and Justice authored by Michael Tonry.  Here is its abstract:

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems.  Indeterminate sentencing systems in which legislatures established maximumsentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority.  Parole boards and judges become largely irrelevant wheneverprosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole laws.  The explanation for the changes andmass incarceration is that developments beginning in the 1960s — White re-sentment of the civil rights movement, rising crime rates, and politicization ofthe criminal law — interacted with long-term characteristics of American historyand culture.  Four are fundamental: chronic, centuries-old racial conflict and threeinheritances from America’s frontier history (election of local prosecutors, moraljudgmentalism associated with fundamentalist Protestantism, and widespread fatalism about and indifference to human suffering).