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February 17, 2024

Lots and lots of weekend reads on lots and lots of different topics

Another weekend leads me to realize that a bunch of notable pieces have caught my eye, and yet I will not have time to blog about them in any detail.  Ergo, the time for a lengthy, and this time quite elclectic, round-up post:

From the Brennan Center, "What the Race for Santos’s Seat Says About Crime Messaging"

From The Bulwark, "How Marijuana Could Become a Political Issue in 2024"

From the Coloroda Sun, "Colorado could become the first state to require in-person voting in jails

From Fox News, "New York man who smuggled pythons into the US by hiding them in his pants sentenced to probation, fined $5k"

From the Kansas City Star, "Kansas hasn’t executed anyone in six decades. Kobach is preparing for that to change"

From Law360, "What Rescheduling Pot Would Mean For Criminal Justice Reform"

From the Marshall Project, "Medical Marijuana Is Legal, But Oklahoma Is Charging Women for Using It While Pregnant"

From The New Yorker, "What Do We Owe a Prison Informant?"

From NPR, "Violent crime is dropping fast in the U.S. — even if Americans don't believe it"

From ProPublica, "Oregon’s Drug Decriminalization Aimed to Make Cops a Gateway to Rehab, Not Jail. State Leaders Failed to Make It Work."

From Reuters, "Mass killer Breivik loses human rights case to end prison isolation"

From Stateline, "Drunken drivers would have to pay child support for victims’ kids under these laws"

From the San Francisco Chronicle, "A little-known feature of Prop. 47 has led to far lower crime rates for this group"

From Slate, "The True Crime Canon: The 25 best crime books, podcasts, and documentaries of all time."

From The Verge, "New bill would let defendants inspect algorithms used against them in court"

As always, I would welcome comments about any of these pieces/topics and especially about which ones might merit more attention through additional postings.

February 17, 2024 in Recommended reading | Permalink | Comments (24)

February 16, 2024

Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?

The question in the title of this post is prompted by this new CoinDesk article headlined "Sam Bankman-Fried's Sentence Might Be Lighter Than You'd Expect."  Here are excerpts:

Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.

Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices.  In July last year, the bankruptcy team said customers were owed $8.7 billion.

The jump in crypto markets matters because restitution can be taken into account for sentencing.  For example, for low losses, the guidelines suggest a range of 24-30 months.  A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place.  “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.

That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected.  In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense.  A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

Prior related post:

UPDATE: In the comments, Professor Todd Haugh flagged his recent LinedIn posting discussing these issues.  Here is how his discussion concludes:

In the federal system, the sentencing range applicable to an economic offender like SBF is heavily determined by the loss amount. The higher the loss, the higher the sentencing range, and the higher the eventual sentence (even though judges don't have to follow the range they are anchored by it).

You might ask (as DealBook does), if customers are made whole and there is no loss, doesn't that help SBF at sentencing?  You would think, except sentencing loss isn't loss like we think of it -- it's actual or intended loss according to the Sentencing Guidelines and most caselaw.  So even though Ray found all the money and there may be very little actual loss, SBF's fraud caused an intended loss of about $8B.  That's the number that will set the loss amount regardless of how much is recovered for customers (subject to a lot-and I mean a lot-of argument between prosecutors and SBF).

But what about the "sort of" part?  Even though the intended loss is what it is, because the guideline range is only advisory, Judge Kaplan can ignore it and impose a lower sentence. That almost always happens in high loss white collar cases because the loss amounts push the sentencing ranges to outlandish heights.  And when the judge is considering how low to go, he's going to be considering that "actual loss" amount, which may be $0 here.

It's not a get out of jail free card, but it matters.

February 16, 2024 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

New federal lawsuit from Alabama death row defendant claims nitrogen gas execution method unconstitutional

As reported in this AP piece, an "Alabama death row inmate filed a lawsuit Thursday that challenges the constitutionality of nitrogen gas executions, arguing that the first person in the nation put to death by that method shook violently for several minutes in 'a human experiment that officials botched miserably'."  Here is more:

The lawsuit filed in federal court in Alabama alleges the January execution of Kenneth Eugene Smith by nitrogen gas was torturous and “cannot be allowed to be repeated.” The lawsuit says descriptions from witnesses that Smith shook and convulsed contradicted the state’s promises to federal judges that nitrogen would provide a quick and humane death.

“The results of the first human experiment are now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful,” attorney Bernard E. Harcourt wrote in the lawsuit. The lawsuit was filed on behalf of death row inmate David Phillip Wilson, who was sentenced to death after he was convicted of killing a man during a 2004 burglary. The lawsuit seeks a declaratory judgment that the current nitrogen gas asphyxiation protocol violates the inmate’s constitutional right to protection from cruel and unusual punishment.

Alabama last month became the first state to use nitrogen gas to put an inmate to death. Nitrogen gas is authorized in three states — Alabama, Oklahoma and Mississippi — but no state had previously attempted to use it.... The U.S. Supreme Court allowed Smith’s execution to proceed last month. The lawsuit contends that media and witness accounts of the execution contradict the state’s prediction to the courts that the nitrogen gas would render Smith unconscious “within seconds.”

Smith shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once. Reporters from The Associated Press, al.com, the Montgomery Advertiser, the Alabama Reflector and WHNT attended the execution as media witnesses. “In stark contrast to the Attorney General’s representations, the five media witnesses chosen by the Alabama Department of Corrections and present at Mr. Smith’s execution recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing,” the lawsuit stated....

Alabama Attorney General Steve Marshall has maintained that the execution was “textbook” and said the state will seek to carry out more death sentences using nitrogen gas. “As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one,” Marshall said the morning after Smith’s execution, extending an offer of help for states considering adopting the method.

Alabama Corrections Commissioner John Q. Hamm said he thought Smith might have deliberately held his breath, but also said the state expected involuntary movements and the type of breathing that occurs with lack of oxygen. “That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said.

February 16, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (16)

February 15, 2024

New IG report documents multple problems contributing to multiple deaths in federal prisons

As reported in this new Washington Post piece, a "combination of negligence, operational failures and a blundering workforce has contributed to hundreds of inmate deaths in federal custody, according to a report released Thursday morning by the Justice Department’s inspector general."  Here is more from the start of the post piece:

The report portrayed a short-staffed Federal Bureau of Prisons (BOP) system in which inmates are easily able to smuggle in dangerous contraband and go unsupervised as they kill themselves and others.

A total of 344 inmates died by suicide, homicide, overdose or other unknown accidents between 2014 and 2021, according to the report.  A majority of those deaths were suicides — with a majority of those suicides among inmates in solitary confinement. That death count has crept up between 2014 and 2021 — even as the federal prison population has declined to about 155,000 people in 2024. In 2014, there were 38 inmate deaths by unnatural causes. In 2021, that number was 57 inmates.

Ultimately, the report concluded, the culture of negligence that led to the deaths of high-profile inmates Jeffrey Epstein and Whitey Bulger in recent years is endemic in the prison system.  Epstein, a convicted sex offender, died by suicide in federal custody, with a separate inspector general report concluding that staff failed to do the proper check-ins with him before hanging himself.  Bulger, a Boston mobster, was bludgeoned to death in his bed hours after he was transferred to a new prison facility.

“Available BOP documentation that details the circumstances surrounding these inmate deaths demonstrates significant recurring issues and contributing factors, including inadequate staff response to inmate emergencies, failure to properly assess, manage, and monitor inmates at risk for suicide; and deficiencies in the BOP’s ability to collect, maintain and learn from evidence and post-incident documentation,” the report concluded.

The press release from DOJ's IG office is available at this link, and the full 100+ page report can be found at this link.  Here is part of the press release:

Department of Justice (DOJ) Inspector General Michael E. Horowitz announced today the release of a report on issues surrounding inmate deaths in Federal Bureau of Prisons (BOP) institutions.  The DOJ Office of the Inspector General (OIG) evaluated 344 inmate deaths at BOP institutions from FY 2014 through FY 2021 in four categories: suicide, homicide, accident, and those resulting from unknown factors.  Many of the deaths that occurred under accidental or otherwise unknown circumstances involved drug overdoses. Suicides comprised the majority of these deaths, with homicides the next most prevalent.  The OIG identified several operational and managerial deficiencies that created unsafe conditions prior to and at the time of a number of these deaths.

February 15, 2024 in Prisons and prisoners | Permalink | Comments (18)

Another reminder of the long life (and possible ending) of life without parole sentences

This local news piece, headlined "Man, 77, released from prison after serving decades for 1965 murder conviction," caught my eye because of the numbers involved.  Here is part of story behind the numbers:

A 77-year-old man has been released from prison after receiving a new sentence for a 1965 felony murder conviction, in the wake of a decision by the Michigan Court of Appeals declaring mandatory life without parole sentences for 18-year-old defendants unconstitutional.

Ivory Thomas was convicted in October 1965 at age 18 of first-degree felony murder for fatally stabbing 18-year-old Michael Railsback in Dueweke Park during a robbery. However, in 2022, the Michigan Supreme Court decided that mandatory life without parole sentences for 18-year-old defendants violate the Michigan state constitution’s prohibition against cruel and unusual punishment.

Judge Chandra Baker-Robinson resentenced Thomas this week to 40 to 60 years. Thomas was released Tuesday, a spokesperson for the Department of Corrections confirmed. He was serving his sentence at the Thumb Correctional Facility in Lapeer....

The Wayne County Prosecutor’s Office did not object to Thomas’ resentencing, according to a news release. Prosecutor Kym Worthy’s office said Thomas has community support and Railsback’s family does not object to his release.

February 15, 2024 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)

"Victims’ Participation in an Era of Multi-Door Criminal Justice"

The title of this post is the title of this new article now on SSRN authored by Béatrice Coscas-Williams, Hadar Dancig-Rosenberg and Michal Alberstein. Here is its abstract:

Victims’ right to participate in their cases — to hear and be heard — has gained formal recognition in both common law and continental legal cultures over the past two decades. Paradoxically, even as victims’ rights are acknowledged, their participation in the judicial process is increasingly circumscribed due to the proliferation of abbreviated and efficiency-oriented judicial procedures.  Focusing on this paradox, this Article uncovers and analyzes the level of victims’ participation in an era of convergence and transformation of legal cultures and traditions.  By exploring new ways to conceptualize the role of victims within contemporary criminal legal systems, this Article explores various and creative paths to enhance victims’ participation in an era characterized by the vanishing trial and a multi-door criminal justice system.

February 15, 2024 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

The Sentencing Project produces short policy document on mandatory minimums

I learned via email this morning that The Sentencing Project has produced this short new document titled "How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It."  I was hoping this document might have some new data or analyses about the contribution of mandatory minimums to incarceration levels, but it primarily reviews the standard arguments against mandatory minimums and provides a few anecdotes about some recent reform efforts to reduce or increase use of mandatory minima.  Here is how the document gets started:

Eliminating mandatory minimum sentencing laws is essential to creating a more just and equitable criminal justice system.  Widespread evidence shows that mandatory minimum sentences produce substantial harm with no overall benefit to crime control.  Determined by lawmakers rather than judges, these sentences represent a uniquely American approach to sentencing that has accelerated prison growth.  They constrain judicial discretion, deepen racial disparities in the criminal legal system, and cause far-reaching harm to individuals, families, and communities.

Despite building bipartisan agreement that such sentences are a policy failure, mandatory minimum sentences continue to be promoted as a tool to combat crime, even as the public signals waning support.  This fact sheet identifies the main issues associated with mandatory minimum sentences.  It documents the modest progress toward ending them, as well as efforts to reinstate them, and offers solutions to hasten change that will aid in ending mass incarceration.

February 15, 2024 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

February 14, 2024

Noting the first beneficiaries of Minnesota’s felony murder reforms

A helpful reader made sure I did not miss this effective review of the recent sentencing consequences of Minnesota's recent reforms of its felony murder laws.  Here are part of the story and some context:

Two women convicted in connection with a 2017 home invasion murder were released from prison last week because of a change in state law. Megan Christine Cater, 25, of Lakeville and Briana Marie Martinson, 27, of Prior Lake are the first people to be released from custody after legislators overhauled Minnesota’s felony murder statute.

While the two admitted taking part in the burglary of Corey Elder’s apartment, a judge found that they did not share responsibility for his murder....

Cater and Martinson were not in the bedroom with [Maurice] Verser when he fired the fatal shot. But in a deal with prosecutors, the women pleaded guilty to aiding and abetting second-degree unintentional murder. In 2018, Judge Kerry Meyer sentenced them to 13.5 years each. Then in 2023, lawmakers in the DFL-led Minnesota Legislature put new restrictions around the state’s felony murder statute. Under the old law, prosecutors could charge a person with aiding and abetting murder during the commission of an underlying felony no matter their role in that felony.

Mary Moriarty, a longtime public defender who was elected Hennepin County Attorney in 2022, supports the change. “It is not fair when two people get charged with murder when one of them pulled the trigger and the other one had no idea this was going to happen,” Moriarty said. “Certainly both people have to be held accountable, but they should be held accountable for what they actually do.”

Moriarty noted that under the old felony murder law, a killer who signs a plea deal could wind up with a shorter sentence than his accomplice who drove the getaway car and is convicted at trial.

The revised statute limits felony murder prosecutions to people who caused the victim’s death, intended to cause it, or were major participants in the underlying crime. Legislators made the changes retroactive. That allowed Cater and Martinson to petition the court to vacate their murder convictions. Last week, Judge Meyer resentenced Martinson and Cater to 57 and 69 months respectively for burglary with a firearm. Because they’d already served that time, the two left prison....

In an email to MPR News, Cater’s attorney and University of Minnesota law professor JaneAnne Murray said that Minnesota’s old felony murder law has resulted in sentences for too many defendants that are disproportionate to their culpability. “Our client was only 19 at the time of her offense, and she did not intend or participate in a murder,” Murray wrote. “It is right and just that she, and many similarly-situated to her, get punished for what they did, and not for the conduct of others.”

Bobbie Elder, Corey Elder’s mother, countered that the women were major participants in the burglary and their felony murder convictions should stand, even under the new law. “Megan Cater and Briana Martinson were the masterminds behind this entire thing,” Elder told MPR News. “They were the planners of it. They were the ones who ensured that there was a gun on scene. If all they wanted to do was rob somebody, they wouldn’t have had to go to the extremes of planning what they did....”

Last month Meyer rejected Tarrance Murphy’s bid for a sentence reduction after determining that he was a major participant in the robbery and admitted pointing the gun at Townsend.

Long-standing complaints about felony-murder laws among academics and many others typically focus on the failure of such laws to match offense levels and sentencing outcomes to true culpability, especially in situations in which a defedant has little or no culpable mens rea with respect to someone else's killing.  But, as the comments by the mother of the victim here highlights, judgments about culpability can often be highly contested.  This story suggests that the new Minnesota law give judges consideable discretion to assess culpability in this context (though that has to be challenging to do many years after an offense).

February 14, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Should AI be treated like a firearm for federal sentencing purposes?

The question in the title of this post is prompted by a speech given today by Deputy Attorney General Lisa Monaco "on the Promise and Peril of AI."  The full speech, as prepared for delivery, is available at this link, and here are excerpts including the portion leading to the query in the title of this post:

Today, as the Chief Operating Officer and the Number 2 person in the Justice Department, I — along with Attorney General Garland — am laser-focused on what may well be the most transformational technology we’ve confronted yet: artificial intelligence, and what it portends for our core mission.

Every new technology is a double-edged sword, but AI may be the sharpest blade yet. It has the potential to be an indispensable tool to help identify, disrupt, and deter criminals, terrorists, and hostile nation-states from doing us harm....

[But] we’ve already seen that AI can lower the barriers to entry for criminals and embolden our adversaries. It’s changing how crimes are committed and who commits them — creating new opportunities for wanna-be hackers and supercharging the threat posed by the most sophisticated cybercriminals.....

The U.S. criminal justice system has long applied increased penalties to crimes committed with a firearm.  Guns enhance danger, so when they’re used to commit crimes, sentences are more severe.

Like a firearm, AI can also enhance the danger of a crime.

Going forward, where Department of Justice prosecutors can seek stiffer sentences for offenses made significantly more dangerous by the misuse of AI — they will.  And if we determine that existing sentencing enhancements don’t adequately address the harms caused by misuse of AI, we will seek reforms to those enhancements to close that gap.

This approach will deepen accountability and exert deterrence. And it reflects the principle that our laws can and must remain responsive to the moment.

I am still thinking through the firearm/AI analogy, and I am not sure it really works. But I do get the idea that "AI can lower the barriers to entry for criminals" and that AI can, in various ways, make some criminal threats and dangers greater.  Just how our sentencing systems should deal with AI-involvement in crime is a topic sure to be of great interest in the years ahead.

February 14, 2024 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Is wilted Garden State clemency about to be spruced up?

The (not-that-clever) question in the title of this post is my reaction to this new press piece headlined "NJ Gov. Murphy says ‘broad’ groups will be eligible for clemency soon."  Here are excerpts:

New Jersey Gov. Phil Murphy says large groups of people convicted of crimes could become eligible for clemency soon. “I would hope sooner than later, within the next month or two, we're going to unveil a process … that will be, I think, revolutionary relative to what you've seen in New Jersey historically,” Murphy said Tuesday during the monthly “Ask Governor Murphy” call-in show on WNYC.

Murphy said the initiative would look at “broad categories of individuals who would automatically be eligible upon application for accelerated consideration” of clemency.  The governor, however, stopped short of saying who might receive clemency, or for what types of crimes.

Murphy’s comments expand the brief mention he made last month during his State of the State address, when he promised to unveil a clemency initiative “that will ensure we live up to our promise as the state for second chances.”

Since taking office in 2018, the governor has not taken clemency actions, either through reducing prisoners’ sentences or granting pardons, Politico reports.  On Tuesday, Murphy said the initiative is still being worked on, but promised that New Jerseyans would hear more about it soon.  Pressed on why he has yet to take any clemency actions, Murphy said that’s “not atypical” for a governor. He said that his impression is that most officials with clemency authority wait until the end of their time in office to make those decisions.

Murphy’s predecessor, former Gov. Chris Christie, issued 55 clemency orders during his time in office, and about half happened in the final days of his term....

During Tuesday’s show, Murphy said he shared a caller’s frustration over years-long backlogs in the state’s expungement process.  In 2019, Murphy signed a law allowing New Jerseyans to expunge their records of most crimes, with exceptions such as murder and sexual assault, if they kept their record clean for ten years. But in October 2023, the New Jersey Office of the Public Defender filed a class-action lawsuit against the state police over delays in processing expungement orders.

I do not know much about clemency practices "i New Jersey historically," though I do know that serving as a Governor for more than six years without a single clemency grant is some pretty ugly history.  But even the most wilted gardens, and Garden State practices, have the potential to be revitalized, and I am pleased to hear Gov Murphy apparently has something better in the works.

As vaguely described above, I am left wondering if the Jersry Boys are drawing inspiration and guidance from the work of Governor Mike DeWine here in Ohio with our great Expedited Pardon Project.  (I am biased in my praise for Ohio's EPP effort in part because OSU's Drug Enforcement and Policy Center (DEPC) has been playing a significant role helping the Governor's clemency work through this ground-breaking program and we recently celebrated at OSU the many pardons that Gov DeWine has already granted.)  There would be a sound basis for other Governors to follow the lead and clemency achievements of Ohio Gov DeWine here, and I hope were hear more soon about what Gov Murphy has in the works.

A few ilder posts about the Ohio "Expedited Pardon Project":

February 14, 2024 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

February 13, 2024

"Principles of Prosecutor Lenience"

The title of thid post is the title of this new essay authored by Jeffrey Bellin now available via SSRN. Here is its abstract:

Once “the Darth Vader of academic writing,” American prosecutors are making a comeback.  In recent years, “progressive prosecutors” have leveraged the power of lenience to “reform the criminal justice system from the inside.”  There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: “yes.”

But American criminal law covers a broad array of offenses with substantial differences in punitiveness across jurisdictions and courts.  Even harsh critics of the system’s severity tend to pivot when it comes to certain offenses, like crimes committed by police.  Consequently, there are profound questions about the when and why of lenience, and particularly prosecutor lenience.

This Symposium Essay offers a skeletal framework for evaluating prosecutor lenience. It defines prosecutorial lenience and proposes three principles to guide its exercise: prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.  It then applies the principles in common prosecutorial lenience scenarios, like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. Interestingly, the analysis reveals that, in some circumstances, the principles conflict.  Perhaps most significantly, insisting on the first two principles can jeopardize the third.  This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.

February 13, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

"The problem with criminal records: Discrepancies between state reports and private-sector background checks"

The title of this post is the title of this new article just published in Criminology and authored by Sarah Lageson and Robert Stewart. Here is its abstract:

Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants.  We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private-sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. 

Based on our analysis, private-sector background checks are laden with false-positive and false-negative errors: 60 percent and 50 percent of participants had at least one false-positive error on their regulated and unregulated background checks, and nearly all (90 percent and 92 percent of participants, respectively) had at least one false-negative error. 

We define specific problems with private-sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives.  Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment to education to housing and violate basic principles of fairness in the legal system.

February 13, 2024 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (22)

February 12, 2024

US Sentencing Commission publishes two public data briefings to inform comments on some proposed guideline amendments

I was intrigued to discover that the US Sentencing Commission's website today announces "Data Briefings on Proposed Amendments" to announce the publishing of "supplemental data to inform public comment on recently proposed amendments relating to youthful individuals and simplification."  This webpage, in turn, links to two distinct briefing pages that are introduced this way:

Supplemental Data: 2024 Proposed Amendment Relating to Simplification

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  In order to further inform commenters, the charts below depict data relating to application of departure provisions other than §5K1.1 or §5K3.1 (either alone or in conjunction with §5K1.1 or §5K3.1), i.e., "Other Departure."

Public Data Briefing: 2024 Proposed Amendment Relating to Youthful Individuals

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines. Commission staff prepared a data presentation to inform public comment on a two-part proposed amendment related to youthful individuals. This briefing presents data on the impact of juvenile adjudications on criminal history scoring and sentencing outcomes to help inform public comment.

Disappointingly, the USSC has not yet published any detailed data concerning its proposed amendment to the Guidelines Manual that includes three options to address the use of acquitted conduct for purposes of determining a sentence.  I am not sure if the lack of data on this front bodes well or ill for guideline reforms on that front.

February 12, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"The Price of Uncontested Prosecutor Elections: An Empirical Perspective"

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

Most scholarship on local prosecutor elections largely ignores the influence of campaign contributions.  This is so despite an ever-increasing amount of campaign contributions that distribute unevenly across local prosecutor candidates and their mostly uncontested elections.  Motivating this study includes a desire to develop an initial accounting of factors, including campaign contributions, which plausibly inform the emergence of unopposed prosecutor candidates and uncontested elections.  Leveraging the leading and recently-released prosecutor election and campaign contributions data sets for the most recent prosecutor elections across the United States between 2012-2019, findings from this study identify a robust set of core factors that systematically distinguish unopposed candidates as well as their uncontested elections.  These factors include campaign contributions, district population, prosecutors’ political affiliation, and incumbency.  Overall, these results do not uncover any obvious policy levers that might help reduce the number of uncontested prosecutor candidates and elections. 

February 12, 2024 in Who Sentences | Permalink | Comments (1)

Notable new reporting on how "free" public defenders often come with a fee

The Marshall Project has this interesting new feature story headlined "If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill."  I recommend the full piece, and here are excerpts:

On television and in the movies, police officers read people their Miranda rights and tell them they will be provided a lawyer if they cannot afford one.  But in reality, legal representation is rarely free.  The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the cost.  More than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.

Iowa takes these efforts to the extremes, an investigation by The Marshall Project found. Not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.  The practice is “definitely an outlier,” said Lisa Foster, co-executive director of the Fines and Fees Justice Center, an advocacy organization that tracks court debts....

Sixty years after Gideon v. Wainwright, the Supreme Court’s landmark ruling guaranteeing the right to counsel, the systems that provide poor people with lawyers in criminal courts are crumbling.  Public defenders flounder under impossible caseloads.  Private lawyers don’t want to take low-paying court appointments. Poor people languish in crowded jails or take plea deals to avoid incarceration.  Problems with public defense have become so dire that the U.S. Department of Justice has been hosting listening sessions across the country about problems with access to lawyers.

But there is also a less-known issue: So-called “free” lawyers aren’t free.  This summer, the American Bar Association released guidelines recommending that poor people shouldn't have to pay for a lawyer in criminal cases.  But in Dothan, Alabama, for example, people charged with Class C and D felonies, which commonly include low-level drug charges, must pay a flat fee of $2,000.  In rural Anderson County, in East Texas, people are charged $750 to plead out to a third-degree felony.  If they choose to go to trial, they must pay $750 a day for legal counsel.

February 12, 2024 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)