Sentencing Law and Policy

"The Verdict on Private Criminal Justice"

The title of this post is the title of this book chapter now available via SSRN which is the final chapter of the book Private Criminal Justice authored by my OSU colleague Ric Simmons. Here is its abstract:

This is the concluding chapter of my book Private Criminal Justice, which was recently published by Cambridge University Press.  The book traces the history of private parties’ involvement in responding to criminal activity, and examines the modern instances of private policing, private adjudications, and vigilante justice.  This chapter first considers how the implementation of a widespread private criminal justice system — that is, responding to and punishing criminal conduct without the participation of the state — can still be responsive to the needs and interests of the community.  The chapter argues that the state in fact does a poor job of representing community interests, due to the politicization of public criminal justice policy and the related rise of mass incarceration, and posits that the private criminal justice system could enhance the influence of community interests on criminal justice policy.

The chapter concedes that currently, the components of our private criminal justice system lack many of the basic procedural protections for defendants, and it explores ways that the private system can be regulated so that defendants receive these protections, or at the very least ensure that defendants are informed of the protections that they are forfeiting when they opt out of the public system.

The chapter then offers suggestions for improving the accountability of private police officers, and for using aspects of the private criminal justice system to ameliorate the inequalities of the public criminal justice system.  It concludes by imagining a world where private criminal justice enforcement, settlements, and adjudications are normalized and common, resulting in a wider net of social control in which more criminal conduct is detected and punished, but the punishments are far less severe than in the current system.

Local judge allows assaulter to serve some of her jail time by serving fast food

This new Washington Post piece, headlined "Woman sentenced to fast-food job after hurling Chipotle bowl at worker," reports on a notable local crime resulting in a notable fitting sentencing provision.  Here are the details:

Emily Russell was a store manager at an Ohio Chipotle when an irate customer hurled a chicken burrito bowl at her face. Now a judge has sentenced the customer to work at a fast-food job to avoid further jail time.

Rosemary Hayne, 39, was found guilty of one count of assault on Nov. 28 after admitting to throwing the burrito bowl at Russell in September.... Hayne’s behavior went viral in a video showing her screaming at Russell, 26, then grabbing her food and throwing it directly in Russell’s face.

At first, Hayne was slated to pay a fine and undergo a 180-day jail term, with 90 days suspended. However Gilligan offered her a chance to reduce her sentence with a highly unusual proposition. The judge presented her with an opportunity to cut her sentence by 60 days in exchange for consenting to work 20 hours per week at a fast-food restaurant for two months. Hayne agreed.

In the courtroom, Russell, the victim, told the judge the past two months have been the worst of her life. And she said she deals with the trauma of the incident daily. She told The Washington Post that she was protecting a 17-year-old employee who was getting yelled at by Hayne. She remade her order twice and included extra protein and other ingredients to appease Hayne, she said. Hayne left with her food but returned a few minutes later. “She started screaming at me. … The next thing I knew she threw the food in my face. I was so embarrassed and in shock.”...

Russell, who worked at Chipotle for more than four years, and has been in the service industry for nine, says she had drinks and sandwiches thrown at her by customers but never experienced something so violent at work before....

She has gotten supportive comments from people across the United States and is glad to share her story if it can help other fast-food workers. “Everyone has bad days, but it should never come to a point where you have to mistreat a human being,” she said. She’s happy with the judge’s sentence, saying “she got exactly what she deserved” and now gets to walk in her shoes.

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The 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 also livestream and record this event at the link below. The agenda follows:

• Vote to Adopt August 2023 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

• Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

"Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met"

The title of this post is a sentence from a state appellate court decision handed down earlier this week.  Eugene Volokh, via the Volokh Conspiracy post "Let Us Kill Your Dog or Go to Jail for a Year," gets credit for flagging the remarkable sentence and ruling in State v. Richards, No. 56949-3-II (Wash. Ct. App. Nov. 7, 2023)(available here).  Here are the basic facts and part of the sentencing discussion:

Jennifer Richards’ dog, Thor, twice bit another dog unprovoked.  As a result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the Revised Code of Wahkiakum County (RCWC).  One evening, Richards left Thor alone and unsecured on her property.  The county charged Richards with violating RCWC 16.08.050(F), an ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial leash or physically restrained by a responsible person.  Neither state statute nor the county code authorizes destruction of the dog without an opportunity to cure a violation like this one.

After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days.  However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day....

At sentencing, the prosecution recommended that the district court impose the maximum sentence of 364 days in jail and a $5,000 fine, to be served until Richards gave Thor to the local animal control authority so he could be “put down.”   Richards asked for any sentence to be stayed pending appeal to the Wahkiakum County Superior Court. 

The district court imposed the maximum jail time of 364 days.  But it told Richards, “You shall not be required to go into custody if you provide written proof that the dog, Thor, has been surrendered . . . by tomorrow at 3:00 p.m.”  The district court added that if Richards were to fail to surrender Thor by that time, she would have to report to jail and remain there until she surrendered him.  Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed...

Richards asked if she could have a week to surrender Thor so that her boyfriend, who was away, would have a chance to say goodbye.  The district court denied her request.  It said, “Ms. Richards, you’ve had since . . . April of 2019 to come into compliance with the dangerous dog registration requirements.”  The district court added, “We are giving you a bit over 24 hours so that you can get your affairs in line, with both your daughter and your pet responsibilities here, and that is how much time the [c]ourt is willing to allow under the circumstances of this case.”... 

Richards argues that the district court could not impose a sentence that forced her to choose between having her dog destroyed and going to jail for 364 days.  She contends that while a district court “has broad discretion to impose sentencing conditions tending to prevent future commission of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding imprisonment.   And she contends that tying her “personal freedom to the tormenting choice to kill her and her daughter’s dog is beyond cruel and unusual” under the federal and state constitutions.  The state responds that the district court had authority to impose Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that the sentence imposed was outside the scope of the district court’s discretion....

While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met. The district court acted outside the scope of its discretion by imposing a condition for achieving a suspended sentence that was untethered from these state and county laws.  The district court, therefore, abused its discretion when it imposed Richards’ sentence.

Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’ constitutional argument that the punishment was cruel and unusual.

New Prison Policy Initiative briefing covers "When parole and probation rules disrupt support systems"

Leah Wag of the Prison Policy Initiative has this new briefing titled "Guilty by association: When parole and probation rules disrupt support systems."  Here is how it begins (with links from the original):

For the 3.7 million people on parole or probation in the United States, the very people who can best support their success are often unable to help because of supervision conditions that prohibit them from being in contact.  Individuals reentering their communities on probation or parole often rely on support networks of family and peers who have been through similar reentry experiences.  Though research supports the unique benefits of these social connections, many states actually prohibit people on supervision from this contact, under the false assumption that it will lead people into criminalized behaviors. These “association” restrictions — sometimes called “no-association conditions” — are isolating and costly to those on supervision.  And the stakes are high: Failure to follow association restrictions can result in incarceration.

In prior work on probation and parole, we’ve referred to more widely known, difficult-to-satisfy supervision conditions — like securing employment and paying relentless fees— as examples of why supervision doesn’t “work” for so many people and too often results in incarceration for “technical” violations. In this briefing, we add to this work by compiling the most thorough research and data on association restrictions to date.  We show that, despite their illogical foundations and documented harms, they are imposed on hundreds of thousands of people (and impact many others) at any given time. If states and local jurisdictions truly want people on supervision to succeed, they should acknowledge and ultimately abandon association restrictions.

Research suggests that association-related release conditions are common in parole and probation. These restrictions are relics of antiquated supervision systems that required people under their control to live virtuous lives, “be good,” and associate with “good people.”  They generally prohibit interactions between people on supervision and large swaths of the population, such as those with felony convictions or others on probation or parole.  As a result, people must steer clear of certain places altogether, producing a complex web of prohibited activities and relationships that make it even harder to find housing and work, arrange for transportation, participate in treatment programs, or otherwise succeed in reentry.

Some early accounts of SCOTUS oral arguments regarding civil forfeiture process

As previewed in this post, this morning the US Supreme Court heard oral argument in Culley v. Marshall, No. 22-585, which presents questions regarding what the Due Process Clause requires for state civil forfeiture processes.  My teaching schedule has so far kept me from listening to the full argument, which ran nearly 100 minutes and is now available at this link.   The headline of some of the press pieces discussing the argument suggests a split court, but one leaning in favor of the state and against individuals who have had their property seized:

From Bloomberg Law, "Justices Doubt Test Favoring Prompt Post-Seizure Hearings"

From Law.com, "'Hard Row to Hoe': Skeptical Supreme Court Hears Demand for Quick Forfeiture Hearings"

From Law & Crime, "Sotomayor, Gorsuch appear to team up against Alabama in civil asset forfeiture case"

From Reuters, "US Supreme Court leans toward Alabama in dispute over vehicles seized by police"

From the New York Times, "Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case"

"Original Understanding, Punishment, and Collateral Consequences"

The title of this post is the title of this notable new article authored by Brian Murray and now available via SSRN.  Here is its abstract:

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences?  This Article begins to tackle that question.  For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment.  Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose.  A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not.  Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine.  Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive.  Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes.  The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist.  Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment.  By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”.  If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence.  In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government.  These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.

Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case

Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks.  Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer.  Here are some details:

Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”

Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.

Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings.  She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.

She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her.  “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.

The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas.  That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.

She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.

The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....

Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...

Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.  Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.

Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial.  He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges.  He was sentenced to five years of probation and agreed to testify in further proceedings.

Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors.  For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).

In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face.  As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition).  So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.

Making the case for expanded use of home confinement for older federal prisoners

Hugh Hurwitz, who served as Acting Director of the federal Bureau of Prisons, has this new commentary in The Hill headlined "Moving elderly prisoners home saves taxpayer dollars without sacrificing safety." I recommend the full piece (and its many links), and here are excerpts:

The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders.  This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.

Well-established research shows that older people are substantially less likely to recidivate.  In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50.  Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.

At the same time, the cost of housing older people is becoming astronomical.  The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade.  Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase....

Since the First Step Act was established, very few have been placed into this pilot program.  The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January.  Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.

In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement.  This pilot program has not been given a chance to see if it works.  It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people.  Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent....

The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further.  This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence.  This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.

During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence.  Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense.  That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes.  Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.

Eleventh Circuit panel deepens circuit split by holding fugitive status does not serve to toll term of supervised release

LawProf Jacob Schuman made sure via this tweet that I did not forget to blog about last week's notable panel ruling in US v. Talley, No. 22-13921 (11th Cir. Sept. 7, 2023) (available here).  Here is how the unanimous ruling begins:

This appeal requires us to decide whether absconding during a term of supervised release tolls the supervised release period. James Reginald Talley, a convicted felon, appeals the district court’s judgment revoking his supervised release and ordering him imprisoned based in part on a violation committed after his supervised release had lapsed but while he was, based on the district court’s findings, a fugitive from justice.  We hold that the district court erred in tolling Talley’s period of supervised release based on his fugitive status. In doing so, we join the First Circuit and part company with the Second, Third, Fourth, and Ninth Circuits.  Accordingly, we vacate the district court’s judgment and remand for resentencing.

And here are a few paragraphs from the opinion that help highlight why it is blogworthy:

The circuits are divided over the application of “fugitive tolling” to terms of supervised release.  A majority of courts to consider the question apply the doctrine, holding that absconding from supervision equitably tolls the offender’s supervised release period during his truancy.  See United States v. Island, 916 F.3d 249, 251 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99, 108–10 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448, 455–57 (4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d 951, 952 (9th Cir. 2005). But we are convinced that the minority view is the correct one.  Accordingly, we join the First Circuit in holding that “there can be no tolling of the period of supervised release on the basis of fugitive status.” United States v. Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010); see also Island, 916 F.3d at 256–59 (Rendell, J., dissenting).

We think the First Circuit has the better position for two reasons. First, the justifications for fugitive tolling in other contexts — such as prison escapes — do not apply to the context of supervised release.  Second, the doctrine is inconsistent with the text of the statute and our caselaw interpreting that statute.

It will be interesting to see if the federal government seeks SCOTUS review of this issue.  If they do, I suspect the Court might take it up but then might just rule against the feds.  With that possible outcome, the feds might just now decide not not seek further review.  

Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans

Via email, I learned today of an exciting and impactful new report from the Council on Criminal Justice’s Veterans Justice Commission. Here are all the details and links via the text of the email:

CCJ’s Veterans Justice Commission today released a policy roadmap that encourages states and the federal government to expand alternatives to prosecution and incarceration for justice-involved veterans.
 
The policy framework outlines alternative sentencing options that not only recognize veterans’ service, but also that their criminal behavior may have been influenced by that service.  The options, which include expanded use of pretrial supervision and probation in lieu of a record of conviction or incarceration, are grounded in evidence-based practices used in problem-solving courts and community supervision.  The Commission also encouraged jurisdictions to pass laws enabling veterans whose cases are processed through such options to file for record expungement.
 
“We are prosecuting and imprisoning veterans while denying them the care and consideration they need and deserve — despite the fact that their criminal justice involvement is often due, at least in part, to their willingness to fight for their country,” Commission Chair and former U.S. Defense Secretary Chuck Hagel said.  “As a result, we are not only doing a disservice to veterans, but also jeopardizing the safety of the public they once fought to protect.”
 
Based on the policy framework, the American Legislative Exchange Council (ALEC) in August adopted as model policy the Veterans Justice Act.  This version of the framework will be shared with state legislatures as a blueprint for action on the issue.

The policy framework reflects an initial set of recommendations released by the Commission in March.  Additional recommendations targeting veterans’ transition from service to civilian life will be forthcoming early next year. In addition to Hagel, Commission members include former Defense Secretary and White House Chief of Staff Leon Panetta, a former Sergeant Major of the Marine Corps, the chief justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 

In Jan 6 case, split DC Circuit rules sentence for petty offense cannot include imprisonment and probation

As reported in this CNN piece, a "federal appeals court in Washington issued a ruling Friday that jeopardizes the sentences of some January 6 rioters who were convicted of misdemeanors for trespassing at the Capitol and were sentenced to both jail time and probation."  Here is more:

The opinion by DC Circuit Judges Justin Walker and Judith Rogers determined that January 6 rioter James Little couldn’t receive a sentence of prison followed by probation – what is sometimes called a “split sentence” – for his petty offense.  “Probation and imprisonment are alternative sentences that cannot generally be combined,” the appeals court wrote.

Judges in DC’s federal trial-level courts had used these “split sentences” for low-level January 6 offenders to briefly jail them as punishment for their role in the historic attack on the Capitol and then to keep them on probation and under court supervision through the next election....

In his dissent Friday, [Judge] Wilkins wrote that the majority’s ruling robs judges of a tool Congress gave them.  “If petty offenders need a short prison sentence to punish them, to reflect the seriousness of the offense and to deter them from future criminal conduct, they need it regardless of whether they committed one petty offense or two,” Wilkins wrote. “If petty offenders need rehabilitation following imprisonment, they need it regardless of whether they committed one petty offense or two.”

The ruling in US v. Little, No. 22-3018 (DC Cir. Aug. 18, 2023), is available at this link.  Here is how the majority opinion starts:

James Little committed a petty offense.  The district court sentenced him to prison, followed by probation.  The only question on appeal is whether that sentence is authorized by statute.

It is not.  Probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Little’s petty offense.

Here is how the dissent begin:

James Little pleaded guilty to a petty offense under 40 U.S.C. § 5104(e)(2)(G) related to his participation in the January 6, 2021 insurrection at the United States Capitol.  The District Court sentenced him to 60 days’ imprisonment, followed by three years of probation.  On appeal, Little offers several different reasons why his split sentence violates federal sentencing statutes.  The majority agrees.  Because I believe that the majority and Little are mistaken, I respectfully dissent.

Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

This past Friday, a split panel of the Fifth Circuit handed down a remarkable ruling in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here). Here are excerpts from the start and conclusion of the 50-page majority opinion:

In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890....

For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment.  In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society.  Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent.  Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement.  And in our independent judgment — a judgment under the Eighth Amendment that the Supreme Court requires we make — Section 241’s permanent disenfranchisement serves no legitimate penological purpose.  By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society.  It is thus a cruel and unusual punishment....

“No right is more precious in a free country” than the right to vote.  Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic, are illusory if the right to vote is undermined.” Id.  This right is not only fundamental to the democratic ordering of our society, it is also expressive of the dignity of American citizenship — that each person is an equal participant in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531 U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”).

Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes.  In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.  Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.  Accordingly, we REVERSE the district court’s grant of summary judgment to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER judgment for Plaintiffs on that claim.

Judge Edith Jones authored a dissent, and here are excerpts from the start and conclusion of her 15-page majority opinion:

Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties [that stated roughly]: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change.

Today, the court turns that advice on its head.  No need to change the law through a laborious political process.  The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause.  With respect, this is not a road that the Constitution — or precedent — allows us to travel. I dissent....

Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in constitutional law. I respectfully dissent.

These opinions are certainly not the last words on this matter.  This Washington Post article about the ruling reports that Mississippi is sure to appeal this ruling: "Mississippi 'expects to seek further review,' wrote Debbee Hancock, a spokeswoman for Mississippi Attorney General Lynn Fitch."

I suspect "further review" will first focus on seeking en banc consideration of this matter from the full Fifth Circuit.  But maybe Mississippi will seek to go directly to the Supreme Court for review.  For a variety of reasons, I am inclined to guess that neither the full Fifth Circuit nor the Supreme Court will find the majority opinion here compelling.

Sentencing Project releases "Ending Mass Incarceration: Safety Beyond Sentencing"

The Sentencing Project released this new ten-page report titled "Ending Mass Incarceration: Safety Beyond Sentencing."  Here is how it gets started

After 50 years of mass incarceration, the United States faces a reckoning.  While crime is far below its peak in the early 1990s, the country continues to struggle with an unacceptable amount of gun violence.  Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high. A great imbalance in our national approach to public safety, one that relies too heavily on the criminal legal system, has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of families and communities to address the circumstances that contribute to crime.

This report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

• Implement community safety solutions – Community-based interventions such as violence interruption programs and changes to the built environment are a promising approach to decreasing violence without incarceration.

• Transform crisis response – Shifting responses to people in crisis away from police toward trained community-based responders has the potential to reduce police shootings, improve safety, and decrease incarceration.

• Reduce unnecessary justice involvement - Ending unnecessary police contact and court involvement by decriminalizing and diverting many offenses can improve safety.

• End the drug war – Shifting away from criminalizing people who use drugs toward public health solutions can improve public health and safety.

• Strengthen opportunities for youth – Interventions like summer employment opportunities and training youth in effective decision-making skills are a promising means of reducing criminal legal involvement.

Honored to be participating in "Rewriting the Sentence II Summit"

I am quite pleased to have been invited to participate in this big sentencing conference taking place in Washington DC in a few months, titled "Rewriting the Sentence II Summit."  Sponsored by the Center for Justice and Human Dignity, here is how this conference is described: 

The Rewriting the Sentence II Summit, presented by the Center for Justice and Human Dignity, is the long-awaited sequel to the acclaimed Rewriting the Sentence summit of 2019, hosted by The Aleph Institute at Columbia University Law School.  The Summit will continue to raise awareness and promote the expanded use of alternatives to incarceration, with a special focus on how trauma impacts the criminal legal system.

Please join us at this two-day, dedicated peer-to-peer learning forum where judges, prosecutors, correctional leaders, and other legal system decision-makers will convene to confront the complex challenges of incarceration and its harmful consequences and encourage meaningful change by fostering the adoption of alternative sentencing programs and a more effective approach to safety and justice.

The Summit will feature a stellar lineup of speakers, sessions, interactive roundtables, and discussions, and will be well-attended by a diverse representation of judicial, prosecutorial, pretrial, probation, and other legal officials from federal, state and local jurisdictions.

This gathering will act as a space for meaningful exchanges between leaders and practitioners already steeped in the alternatives-to-imprisonment landscape, for those curious to engage further on ATI implementation, and for those open to learning about what ATI programs are currently in use.  We hope to galvanize individuals departing from this Summit to become change-agents for these alternatives in their respective jurisdictions and communities.

The Summit will include a virtual interactive session with currently incarcerated people and provide expert insights on issues such as trauma-informed care, behavioral science, and implicit bias.

New report highlights the "promise of targeted home confinement with electronic monitoring"

The Niskanen Center today released this short new report, title "Safer, Smarter, and Cheaper: The promise of targeted home confinement with electronic monitoring," authored by Greg Newburn, Richard Hahn and Matthew Bulger.  Here is its summary:

Under the CARES Act, signed into law in March 2020, Congress temporarily expanded the authority of the federal Bureau of Prisons to place prisoners in home confinement.  As of May 27, 2023, BOP had placed 13,204 individuals into home confinement under that authority.  As of May 1, just 22 of those people had been returned to prison for committing a new crime.

Congress should pass legislation to establish a program modeled after CARES Act home confinement.  This legislation should make home confinement a default sentence for offenders who meet certain criteria and provide sentence enhancements for crimes committed while on home confinement.  Additionally, Congress should empower BOP to modify supervision and behavioral expectations; adopt swift and certain sanctions for non-criminal rule violations; test different eligibility criteria; and incorporate graduated reintegration to ease the transition from supervision to freedom.

Research evidence from both the U.S. and abroad suggests home confinement is an effective and appropriate alternative to imprisonment for lower-risk offenders.  A modified home confinement program would lead to substantial savings that could be reinvested in police to arrest, prosecute, and incarcerate dangerous criminals who would otherwise remain free, and help BOP better manage the population of prisoners housed in federal facilities.

Some prior recent related posts:

• Senator Booker releases policy brief highlighting CARES Act home confinement program 
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 
• With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? 

Senator Booker releases policy brief highlighting CARES Act home confinement program

As reported in this press release, "U.S. Senator Cory Booker (D-N.J.), a member of the Senate Judiciary Committee and Chair of the Subcommittee on Criminal Justice and Counterterrorism, [on Friday] released a policy brief detailing the success of the CARES Act home confinement program three years after its inception." Here is more from the press release:

In March 2020, Congress passed the CARES Act, which included provisions that permitted the Department of Justice to expand home confinement during the “covered emergency period” to mitigate COVID-19 risks in federal prisons.  The Bureau of Prisons transferred 13,204 individuals to serve their sentences on home confinement. 3,627 still remained in the program as of May 27, 2023.  In accordance with the CARES Act, the program officially ended on June 11, 2013, 30 days after the conclusion of the COVID-19 public health emergency.

The policy brief finds that the CARES Act home confinement program “has alleviated a strain on federal prison staff, saved taxpayers millions, reunified families, and successfully integrated thousands of formerly incarcerated individuals back into society – all without compromising public safety.”  In Fiscal Year 2020, the cost to incarcerate a person in a Federal facility was $120.59 per day.  In contrast, according to the brief, “an inmate in home confinement costs an average of $55.25 per day — less than half the cost.”

The CARES Act home confinement program has also “enabled the reunion of thousands of families, empowered formerly incarcerated individuals to actively pursue employment and education, and facilitated their meaningful contributions to our economy and community.”

Moreover, of the 13,204 individuals assigned to the home confinement program under the CARES Act, only 22 – less than 1% – have been charged with a new criminal offense.  “The evidence is clear: the CARES Act home confinement program has been a resounding success in safely reintegrating individuals into the community without compromising public safety,” concludes the brief.

The full policy brief, titled "CARES Act Home Confinement: Three Years Later," can be viewed in full at this link.

Prison Policy Initiative shines light on "shadowy form of incarceration" known as civil commitment

The folks at the Prison Policy Initiative have released yet another new effective and informative data report. This new report is titled "What is civil commitment? Recent report raises visibility of this shadowy form of incarceration" and is authored by Emma Peyton Williams.  Here is part of the starting text:

As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence.  Around the turn of the millennium, 20 states, Washington D.C., and the federal government passed “Sexually Violent Persons” legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.”  In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence.  In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice.  This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional.  The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.

Some advocates call civil commitment facilities “shadow prisons,” in part because of how little news coverage they receive and how murky their practices are.  In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization.  But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.  This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic....

A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.”  Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime, or preventative detention for a theoretical future crime that has not occurred.  Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.

Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts.  The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.”  But neither “risk assessment” nor “progress through treatment” are objective measures.  In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.

"Rights Violations as Punishment"

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

Is punishment generally exempt from the Constitution?  That is, can the deprivation of basic constitutional rights — such as the rights to marry, bear children, worship, consult a lawyer, and protest — be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment?  On one hand, such state intrusion on fundamental rights would seem unconstitutional.  On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison.  If a judge can sentence someone to life in prison, how can a judge not also have the power to strip someone of the right to marry, or speak, as direct punishment? 

Surprisingly, as this Article reveals, existing law offers no coherent explanation as to why rights-violating punishments somehow escape traditional constitutional scrutiny.  Yet the question is critical as courts — often in the name of decarceration — increasingly impose non-carceral punishments that deprive people of constitutional rights.

Justice Department formally gives BOP discretion to decide who moved to home confinement during pandemic will be returned to federal prison

Pandemic-era readers are likely familiar with the long-running legal saga surrounding what I called the "home confinement cohort," those people released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act.  These folks seemed to be at risk of being sent back to prison, en masse, at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much.  But, later that same year, with some noew folks in charge of sorting out and executing the law, a new OLC 15-page opinion from Dec 2021 concluded that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." (See some of many prior posts concerning the "home confinement cohort" are linked below.)

Of course, back in 2021, the end of the pandemic still seemed far away.  But, thankfully, far away is here, at least legally:  Prez Biden intends to end the COVID national emergency and related health emergencies in mid-May.  In turn, the Justice Department today issued this official "final rule" concerning how to handle folks still serving sentences on home confinement.  Here is how the lengthy explanation of the "rule" starts:

The Coronavirus Aid, Relief, and Economic Security Act (‘‘CARES Act’’) authorizes the Director of the Bureau of Prisons (‘‘Director’’), during the covered emergency period and upon a finding by the Attorney General that emergency conditions resulting from the Coronavirus Disease 2019 (‘‘COVID– 19’’) pandemic materially affect the functioning of the Bureau of Prisons (‘‘Bureau’’ or ‘‘BOP’’), to lengthen the maximum amount of time for which a prisoner may be placed in home confinement. The Department of Justice (‘‘Department’’ or ‘‘DOJ’’) promulgates this final rule to affirm that the Director has the authority and discretion to allow prisoners placed in home confinement under the CARES Act to remain in home confinement after the expiration of the covered emergency period.

There are lots of interesting elements to the DOJ explanation of this rule, but I found this accoutning of the number of persons impacted by the CARES Act's authorization of expanded home confinement to be notable:

Since March 2020, the Bureau has significantly increased the number of inmates placed in home confinement under the CARES Act and other preexisting authorities.  Between March 26, 2020, and January 23, 2023, the Bureau placed in home confinement a total of 52,561 inmates.  The majority of those inmates have since completed their sentences; as of January 23, 2023, there were 5,597 inmates in home confinement.  According to the Bureau, 3,434 of these inmates were placed in home confinement pursuant to the CARES Act.

Here is some additional context from some of the press coverage of this official DOJ rule:

From Forbes, "End Of CARES Act Home Confinement Is Near For Many Federal Prisoners"

From Fox News, "Prisoners in home confinement due to COVID measures can stay there even after emergency ends, says DOJ"

From Reuters, "US rule to allow some inmates to stay home after COVID emergency lifts"

As detailed in toms of the posts linked below, data suggest a remarkably low rate of recidivism for those released into home confinement under the CARES Act.  In addition to hoping BOP will not return anyone to prison absent a good public safety reason for doing so, perhaps a range of federal officials and research can effectively investigate what helped make this program seemingly so successful.

Some of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison 
• Action beginning on Biden clemency plan for some drug offenders in CARES home confinement cohort 
• New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there" 
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 
• With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? 

"Branding Corporate Criminals"

The title of this post is the title of this new article authored by W. Robert (Will) Thomas and Mihailis Diamantis available via SSRN.  Here is its abstract:

Corporate punishment has a branding problem. Criminal sanctions should call out wrongdoing and condemn wrongdoers.  In a world where generic corporate misconduct is a daily affair, conviction singles out truly contemptible practices from merely sharp, unproductive, or undesirable ones.  In this way, criminal law gives victims the recognition they deserve, deters future wrongdoers who want to preserve their good name, and publicly reinforces society’s most treasured values.

Unfortunately, corporate punishment falls far short of all these communicative ambitions.  For punishment to convey its intended message, society must be able to hear it. When courts convict individuals, everyone understands that the conviction places a mark of enduring stigma: “felon,” “thief,” “murderer,” and “fraudster.”  The state reinforces this impression by reserving its harshest and most degrading treatment for individual criminals, caging them and possibly killing them.  Corporate punishment, by contrast, is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment.  In today’s criminal justice system, it can be hard even to identify after the fact who the corporate criminals are.  Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal fines as mere costs of doing business.  Public perceptions have largely followed suit.

Corporate criminal law could disrupt this perverse dynamic by adopting a new sanction that would “brand” corporate criminals.  While the brand sanction could take many forms — different visual marks of varying size — this Article calls for, at a minimum, appending a criminal designation, ⓕ, to corporate felons’ legal name and mandating its appearance on products and communications.  This “corporate criminal brand” would stand as a 21st century corporate reimagining of its medieval corporal punishment namesake. Lawmakers rightly rejected physical brands on individual criminals long ago.  The criminal justice landscape is different for corporations, who feel no pain and have no dignity. Unlike monetary fines, corporate criminal branding would unambiguously signal a corporation’s criminal status to outside observers.  By forcibly integrating corporations’ criminal identity into their public image, criminal law might finally have a way to recognize victims and to strike at what corporations value most.

With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "Bureau Of Prisons Sees End Of Cares Act Home Confinement, Some Prisoners Will Be Left Behind."  I recommend the full piece, and here are excerpts (with links from the original):

The CARES Act provided funding for the United States to tackle the COVID-19 pandemic, but it provided the Federal Bureua of Prisons (BOP) a means to both reduce crowding in federal prisons and place some minimum security prisoners with underlying health conditions on home confinement to complete their sentences. Over 12,000 prisoners have successfully been transferred to home confinement under the CARES Act and few have violated the conditions that returned them to prison. The Office of Legal Counsel determined that BOP’s preexisting authorities did not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends. Now, the Biden Administration has called for the end of national emergency and public health emergency associated with the COVID-19 pandemic on May 11, 2023 and that will mean that some prisoners will not see the benefit of home confinement.

The Federal Register published a draft of the final rule to end CARES Act home confinement in June 2022.  Comments and the final rule itself are now at the White House and will soon be published. In the draft proposal, the Department of Justice indicated that the BOP would stop home confinement placements of prisoners 30 days after the emergency period ends, so mid-June 2023.

As the program sunsets, one would think the BOP is slowing transfer of some prisoners to home confinement under CARES Act, but not so. Randilee Giamusso, who works at the BOP’s Office of Public Affairs gave a statement that, “The Bureau of Prisons (BOP) has not made efforts to slow CARES Act home confinement placements as the end of the CARES Act approaches. We have issued no guidance regarding this matter.”  That is welcome news to prisoners who meet the eligibility requirements for CARES Act placement.

Many are also hoping that the DOJ extends the 30 days after the end of CARES Act to something that takes into consideration the success of the program and the conditions of prison.  Maureen Baird, retired BOP Warden, told me in an interview, “Prisons are communal settings where contagion is always a concern.  I think the BOP has gone to great measures to try to avoid that contagion and one of the most successful measures has been CARES Act home confinement.”...

The CARES Act demonstrated that a select group of prisoners could be identified and successfully placed in community settings for an extended portion of their sentence.  There are currently prisoners on CARES Act who still have over 5 years remaining on their prison term who are under strict terms of home confinement and subject to being returned to an institution in the event of failing to live up to those terms.

Though it makes sense to wind down the pandemic-driven authority to transfer certain persons from federal prison to home confinement, Congress and the US Sentencing Commission and the Justice Department should carefully study the the apparent success of this CARES Act program and consider ways to give BOP broader authority in non-pandemic times to move low-risk prisoners into home confinement. As highlighted by some posts below about the CARES Act, it seems that great use of home confinement might help reduce recidivism, save taxpayer money, facilitate greater reentry success for offenders and advance other important goals. Of course, home confinement needs to uses efficiently and effectively, though if we can do that during a pandemic, I would hope we can also do it at other times.

Some prior related posts:

• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

Federal judge gives cocaine trafficker time served ... and a requirement that she complete her JD program

Here is another notable sentencing story that might keep the comments buzzing  This one comes from the ABA Journal under the headline "Federal sentence includes law school, and attorneys wonder why."  Here are the basics (with links from the original):

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences.  However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint.  She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years.  In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release.  The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member.  A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse....

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests....

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer.  The PAO said the office did not object to the sentence. Richard Gould, a federal public defender, represented Madill.  A receptionist at the Southern District of Texas Federal Public Defender’s Office told the ABA Journal Gould does not speak to reporters....

The sentence is unique, says Michael Heiskell, a Texas attorney and president-elect of the National Association of Criminal Defense Lawyers. Indeed, being a law student could have resulted in a longer sentence if the court was persuaded a defendant’s legal education helped them commit the crime, he adds.

“Kudos to her and her counsel for being able to convince the court to do this. Hopefully, this gives her the motivation to complete her JD. Maybe her story resonated with the judge since he is obviously an attorney,” says Heiskell, a former state and federal prosecutor who does criminal defense work.

According to Heiskell, credit for time served is unusual in drug cases involving delivery, and the sentencing range for Madill’s conviction is between 87 and 108 months.  He adds that a purpose of the federal sentencing guidelines is to avoid disparities, so Madill’s sentence may be useful for defendants with cases similar to hers.  “You would want to make the argument of the courts being consistent in its sentencing for cases such as this. If I had a situation where my client was learning to be a plumber, electrician, etc., I would cite this case,” Heiskell says.

The ABA Journal reporter called me about this  case; I mentioned that, given that the plea was entered in 2019 and then the sentence was not imposed until 2023, it seems quite likely the defendant provided some cooperation in exchange for a reduced sentence. The article does not quote me on that point, but does highlight some of my other speculations for the very special law-school-completion condition of supervision.

For those so interested, here is the exact language in the sentencing entry from Chief Judge Crane: "You must continue to participate and complete an educational program designed to receive a Doctor of Jurisprudence degree." I joked to the ABA Journal reporter that, in some quarters, this condition might be viewed as "cruel and unusual punishment." That quote also did not make the article,  But now that the piece is published, I am eager to hear reactions to this very lawyerly federal sentence.

Effective look at the many ugly realities of probation

The March 2023 issue of Reason magazine has this terrific article about probation systems authored by C.J. Ciaramella and Lauren Krisai. This lengthy piece is worth a full read, and its full title notes its basic themes: "U.S. Probation System Has Become a Quagmire: What was originally intended as an alternative to incarceration has become a system for mass state control." Here are excepts from the start and first part of the piece:

Shortly after becoming a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge.  Schroeder, who lives outside of Minneapolis, Minnesota, pleaded guilty and was sentenced to serve 365 days in Wright County Jail.  And 40 years on probation.

Probation terms vary by state.  They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job, and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar.  For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms.  For the privilege of being subjected to all this, there are also fees owed to the state — all to live on the edge of a life-destroying prison sentence....

While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives.  And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control.  Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.

It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight.  As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?

And here is part of a section of the article about just some of the restrictions probationers face:

When a person is sentenced to probation, there are numerous terms and conditions that he or she must adhere to or face potential consequences. Sometimes these conditions are set by statute, but more often they are assigned by the judge, a state or county probation department, or an individual probation officer.  According to a joint report issued by the American Civil Liberties Union (ACLU) and Human Rights Watch in 2020, people under supervision across the country "must comply with an average of 10 to 20 conditions a day."

In Wisconsin, a person on probation has to obtain written approval from their probation agent to purchase, trade, or sell a car.  New York, Kansas, Georgia, Texas, and South Carolina require that probationers avoid "injurious and vicious habits," while New York, Kansas, Georgia, and South Carolina also require they avoid "persons or places of disreputable or harmful character."  It's common to be prohibited from consuming alcohol, even if the crime was unrelated to drinking....

Beyond that, probationers sometimes have curfews imposed, are unable to cross state or county lines without first getting permission, and expect unannounced drop-ins from officers.... In addition, those on probation are stripped of otherwise constitutionally protected rights. "I live in a really bad neighborhood, and I can't carry any kind of protection," Schroeder says....  Minnesota also doesn't allow offenders to vote until they complete the terms of their criminal sentence, so Schroeder isn't supposed to cast a ballot until 2053.

And here is part of the discussion of probation's contribution to incarceration:

Over the last four years, 42–45 percent of prison admissions were for probation or parole supervision violations. Roughly a quarter of all admissions to prison are for technical violations of probation or parole, such as missing an appointment.

Some states and localities have introduced graduated sanctions for technical violations and more discretion to probation officers, so offenders don't have probation revoked for their first minor screw-up. But in some states, people on probation are often set up to fail. Instead of being an alternative to prison, it simply ends up delaying incarceration.

For example, Idaho has a staggeringly high rate of prison admissions for probation and parole violations.  According to a report this year from the Idaho Department of Correction, 80 percent of 2021's admissions had either violated probation, violated parole, or failed a rider....  The overwhelming majority of admissions to prison in Wisconsin are also for supervision violations. More than 63 percent admitted to prison in 2021 were there for such a violation, and 40 percent were admitted for a technical violation of supervision.  Kansas also has a high admission to prison rate for probation violations — 44 percent of admissions to prison in fiscal year 2021 were for a violation of probation.

"It is Time to Reform Federal Supervised Release"

The title of this post is the title of this notable new commentary at the ACS Expert Forum authored by Aliza Hochman and Jacob Schuman. I recommend the piece in full, and here are excerpts (with links from the original):

This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive.  As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole.  Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment.  If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years.  Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment.  The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive.  Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s....  In approximately one-third of cases, the government ultimately revokes the defendant’s supervised release, sending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.”  Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration.  We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment.  These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release.  First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant....  Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety....  Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests....

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services....

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release.  The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization.  The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress.  We commend this bipartisan political effort to make federal community supervision more effective and more just.

"The Progressive Case for Ankle Bracelets"

The title of this post is the headline of this notable new Newsweek opinion piece authored by Barry Latzer.  I recommend the piece in full, and here are excerpts:

Many of the most progressive countries in the world are making use of technology to promote rehabilitation and reduce incarceration.  Yet blue states like Massachusetts and left-leaning advocacy organizations remain hostile to use of electronic monitoring (EM) methods.  They are overlooking the benefits of EM — even from a progressive standpoint.

Progressives' typically formulated criminal justice goal is laudatory: to minimize incarceration consistent with public safety, and to maximize the rehabilitation of offenders. But achieving these ends has been, to say the least, problematic.

Progressives commonly urge more addiction treatment and mental health services as steps toward rehabilitation. These treatments might be beneficial for many ex-offenders, but by themselves they are unlikely to sharply curtail recidivism.  Vocational training is also useful, but success measured by societal reintegration of ex-offenders is unproven.  Despite all that we've learned about rehabilitation over the last five decades, the inescapable fact is that over 80% of all prisoners are rearrested for new crimes at some point after they are released.

Virtually all prisoners return to free society — and more quickly than most people realize.  Only 20% of prisoners complete full sentences, and the median time actually served is a mere one year and four months.  Released offenders are then monitored by parole or probation officers, who are supposed to encourage constructive behavior.  But as we all know, these officers have enormous caseloads and cannot effectively supervise the volume of people they are assigned.  Under the current parole and probation system, there are, as a practical matter, few disincentives to crime, which is why so many released offenders are repeaters.

Each year, tens of thousands of probationers and parolees fail to comply with the terms of their release and are sent back to jail or prison.  In 2019, before COVID produced its own distinct brand of decarceration, 334,000 probation and parole failures were (re)incarcerated, which constituted 29% of all prison admissions that year.

Given these discouraging realities, the benefits of EM from a progressive standpoint surely are worth reconsidering.

1. EM helps ex-offenders avoid incarceration and reintegrate into free society....

2. EM can effectively replace incarceration....

3. EM protects crime victims, especially the most vulnerable....

Before we reject this useful tool to help ex-offenders turn their lives around and avoid wasted years behind bars, we should ask ourselves this question: Is there a better way to achieve reintegration into law-abiding society, while also taking public protection into account?  I submit there is not.

Prison Policy Initiative reports on "Winnable criminal justice reforms in 2023"

Via email, I learned that the Prison Policy Initiative already has produced its "guide to winnable criminal justice reforms" for 2023.  As explained over at the PPI site, "this briefing is not intended to be a comprehensive platform," but the list is intended "to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system."   Via the email sent my way, here links to part of the guide and additional context:

The reforms focus on nine areas:

• Expanding alternatives to criminal justice system responses to social problems
• Reducing the number of people entering the “Revolving doors” of jails and prison
• Improving sentencing structures and release processes to encourage timely and successful releases from prison
• Reducing the footprint of probation and parole systems and supporting success on supervision
• Protecting incarcerated people and families from exploitation by private contractors
• Promoting physical and mental health among incarcerated and formerly incarcerated people
• Giving all communities equal voice in how our justice system works
• Setting people up to succeed upon release
• Eliminating relics of the harmful and racist “war on drugs”

Each reform explains the problem it seeks to solve, points to in-depth research on the topic, and highlights solutions or legislation introduced or passed in states.  While this list is not intended to be a comprehensive platform, we’ve curated it to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  We made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.

"Set up to Fail: Youth Probation Conditions as a Driver of Incarceration"

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

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision.  Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions.  The orders rely on standardized terms on youth probation condition forms.  This is the first scholarly Article to excavate original youth probation condition forms.  It relies on data from 17 different urban and rural jurisdictions across the United States, including the five largest, and provides both a descriptive and perscriptive analysis of the problems with the design and execution of probation conditions.

Based on my analysis of hundreds of youth probation conditions in these different jurisdictions, I argue that standard youth probation conditions are part of a youth probation system that is structurally flawed in its design and execution, and that probation conditions that lack an adolescent framework cause real harm to youth and their families — particularly those who are most vulnerable, especially youth of color.  Simultaneously, youth probation systems concentrate power in probation officers, granting them inordinate discretionary power.  Although youth probation is viewed as the ideal alternative to detention, I argue that youth probation in its current structure is a driver of incarceration — that should be viewed as part of a carceral state — in need of thoughtful re-imagination: perhaps even abolition.

"Ohio's Not So Uncommon Punishment: Hold Your Sign in Shame"

The title of this post is the title of this new paper recently posted to SSRN and authored by Jon Michael Hilsheimer, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

Some first-year criminal law courses briefly discuss alternative punishments under the header of “scarlet letter” or “shaming” punishments.  Beyond a brief discussion in class and a case or two in the casebook, students are left without a clear picture of how frequently judges engage with these forms of alternative sentencing.  This paper provides an overview of shaming punishments in Ohio.  While it may not account for all instances of shaming punishments that have been administered, or a complete list of the judges that engage with the practice, this paper shows that the practice is not an infrequent occurrence in Ohio.  After providing a brief overview of the landscape of these punishments, this paper surveys how appellate level courts in other jurisdictions have handled challenges to shaming penalties.  The piece then concludes by applying the majority approach using Ohio’s statutory code and posits that there are insufficient statutory grounds for the current practice.

New Sentencing Project report highlights court diversion as a means to reduce juvenile justice disparities

The Sentencing Project today released a big new report authored by Richard Mendel titled "Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice."  Here are parts of the report's executive summary:

Diverting youth from juvenile court involvement should be a central focus in efforts to reduce racial and ethnic disparities and improve outcomes in our nation’s youth justice systems.

Clear evidence shows that getting arrested in adolescence or having a delinquency case filed in juvenile court damages young people’s futures and increases their subsequent involvement in the justice system.  Compared with youth who are diverted, youth who are arrested and formally petitioned in court have far higher likelihood of subsequent arrests and school failure.  Pre-arrest and pre-court diversion can avert these bad outcomes.

Research shows that Black youth are far more likely to be arrested than their white peers and far less likely to be diverted from court following arrest.  Other youth of color — including Latinx youth, Tribal youth, and Asian/Pacific Islander youth — are also less likely than their white peers to be diverted.  The lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.

Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice....

For most youth, diversion is more effective and developmentally appropriate than court.  Compelling research finds that formal involvement in the justice system tends to undermine rather than enhance public safety and to reduce young people’s future success....

Diversion is vastly underutilized in the United States.  Of the youth referred to juvenile or family courts for delinquency each year, just 7% are accused of serious violent offenses.  Therefore, a large majority of youth accused of delinquency should be diverted rather than arrested and formally processed in a juvenile court.  Yet the use of diversion remains limited....

The diversion stage of the juvenile court process should be a top priority for youth justice reform.  Advocates should push for and system leaders must take aggressive action to address racial and ethnic disparities in diversion.  Combined, reforms to expand and improve the use of diversion offer perhaps the most important and promising avenue currently available to reduce disparities and to improve youth justice systems nationwide.

"Racial equity in eligibility for a clean slate under automatic criminal record relief laws"

The title of this post is the title of this new article published in Law & Society Review authored Alyssa C. Mooney, Alissa Skog and Amy E. Lerman. Here is its abstract:

States have begun to pass legislation to provide automatic relief for eligible criminal records, potentially reducing the lifelong collateral consequences of criminal justice involvement.  Yet numerous historical examples suggest that racially neutral policies can have profoundly disparate effects across racial groups.  In the case of criminal record relief, racial equity in eligibility for a clean slate has not yet been examined.  We find that in California, one in five people with convictions met criteria for full conviction relief under the state's automatic relief laws.  Yet the share of Black Americans eligible for relief was lower than White Americans, reproducing racial disparities in criminal records.

We identify two policy amendments that would reduce the share of Black men in California with convictions on their criminal records from 22% to 9%, thereby narrowing the difference compared to White men from 15 to seven percentage points.  Put another way, an additional one in seven Black men currently has a conviction record, compared to their White counterparts.  This would decline to an additional one in 14 if both hypothetical policy amendments were incorporated.  We close with discussion of criminal history data quality limitations, which pose a second key challenge to equitable implementation of automatic criminal record relief reforms nationwide.

"Reimagining Restitution: New Approaches To Support Youth And Communities"

The title of this post is the title of this new report from the Juvenile Law Center. Here is part of the report's executive summary:

Across the country, juvenile courts impose restitution orders on youth too young to hold a job, still in full-time school, and often living in families already struggling to get by. This process doesn’t work for anyone.  Because children can’t make restitution payments, people owed restitution often don’t get paid or face long delays before they are compensated. Meanwhile, restitution is linked to higher recidivism rates for children, family stress, and deeper justice system involvement. In short, no one wins.

Restitution laws also heighten racial and economic disparities in the juvenile justice system. Most young people who make mistakes, including those who damage property, don’t end up in the justice system at all. Instead, schools, families, and communities solve the problem in ways that work for everyone involved. Because of structural racism, discrimination, economic disparities, and persistent bias, however, certain groups of youth are disproportionately pulled into the justice system for the same types of mistakes. The risk of system involvement is particularly high for Black, Latinx, Indigenous, and other youth of color, young people in poverty, youth with disabilities, and LGBTQIA+ youth.1 As described in this publication, young people then face a rigid and unforgiving set of restitution laws, including severe consequences for nonpayment.

This report provides an overview of the legal framework for restitution in juvenile court, examines the impact on youth, families, and people owed restitution, and highlights key recommendations as jurisdictions across the country begin to reimagine restitution.

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment.  Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court"

In this post last week, I noted the great weekly panel series for the month of may titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is to run every Tuesdays at 12noon ET from May 3 through May 24, which means the first panel is scheduled taking place this coming Tuesday, May 3rd.  This first panel is titled " "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court," which means the speakers will focus on incarceration alternatives in the federal courts and the impact of the US Sentencing Commission in their applicability.  Everyone can and should register to attend next week's session or the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this first panel:

Judge Dolly M. Gee, United States District Judge of the United States District Court for the Central District of California, CASA Program

Raul Ayala, Deputy Federal Public Defender at Office of the Federal Public Defender, CASA Program

Judge Leo Sorokin, District Court Judge, District of Massachusetts, RISE Program

Chris Dozier, NAPSA Federal Director, Retired Chief U.S. Pretrial Services Officer

And here is a run-down of the future panels:

State Sentencing Commissions Work Toward Decarceration (Tuesday, May 10 12pm ET)

Sentencing Review and Reduction: Open Questions and Next Steps for the Commission (Tuesday, May 17 12pm ET)

Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET)

Prior related post:

• Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"

"No Check We Won't Write: A Report on the High Cost of Sex Offender Incarceration"

The title of this post is the title of this new article in the journal Sexual Abuse authored by Elizabeth Letourneau, Travis Roberts, Luke Malone and Yi Sun. Here is its abstract:

Child sexual abuse is a preventable public health problem that is addressed primarily via reactive criminal justice efforts.  In this report, we focus on the cost of incarcerating adults convicted of sex crimes against children in the United States.  Specifically, we summarize publicly available information on U.S. state and federal prison and sex offender civil commitment costs.  Wherever possible, we used government data sources to inform cost estimates.  Results indicate the annual cost to incarcerate adults convicted of sex crimes against children in the United States approaches $5.4 billion.  This estimate does not include any costs incurred prior to incarceration (e.g., related to detection and prosecution) or post-release (e.g., related to supervision or registration).  Nor does this estimate capture administrative and judicial costs associated with appeals, or administrative costs that cannot be extricated from other budgets, as is the case when costs per-prisoner are shared between prisons and civil commitment facilities.  We believe information on the substantial funding dedicated to incarceration will be useful to U.S. federal, state, and local lawmakers and to international policymakers as they consider allocating resources to the development, evaluation and dissemination of effective prevention strategies aimed at keeping children safe from sexual abuse in the first place.

Spotlighting the new widening potential of electronic monitoring

This new Los Angeles Times op-ed authored by Kate Weisburd and Alicia Virani and headlined "The monster of incarceration quietly expands through ankle monitors," spotlights why many are concerned that electronic monitoring and other new supervision tool may expanded rather than reduce our nation's carceral footprint.  I recommend the full piece, and here are excerpts (with links from the original):

In Los Angeles County, the number of people ordered to wear electronic ankle monitors as a condition of pretrial release went up 5,250% in the last six years, according to a recent report by the UCLA Criminal Justice Program. The figure rose from just 24 individuals in 2015 to more than 1,200 in 2021.  This type of carceral surveillance is becoming the “new normal” across the U.S....

It’s widely defended as “better than jail,” but being “better than jail” does not make a criminal justice policy sound — much less humane or legal....  It’s deceptive to even compare jail and ankle monitors as though they are the only two options.  There is a third option: freedom.  In 2015 and before, L.A. judges were unlikely to order electronic monitoring as a condition of release before trial. Judges either set bail, released people on their own recognizance or ordered that people be detained in jail until trial.

Now, judges seem to be defaulting to electronic monitoring, perhaps for people who would — or should — otherwise be free. For people who would otherwise be in jail, monitoring may be preferable.  But for people who are monitored instead of being released on their own recognizance, monitoring reflects a dangerous expansion of the carceral state.

This “E-jail” entails a web of invasive rules and surveillance technologies, such as GPS-equipped ankle monitors, that allow law enforcement to tag, track and analyze the precise locations of people who have not been convicted of any crime....  The difference between E-jails and real jails is a matter of degree, not of kind.  A recent report by researchers at George Washington University School of Law details the myriad ways that monitoring undermines autonomy, dignity, privacy, financial security and social relationships when they are needed most.

Like in jail, people on monitors lose their liberty. In L.A., as elsewhere, people on monitors are forbidden from leaving their house without pre-approval from authorities days in advance.  Like in jail, people on monitors have little privacy and must comply with dozens of strict rules governing every aspect of daily life. Failing to charge the monitoring device, changing a work or school schedule without permission or making an unauthorized trip to the grocery store can land someone back in jail for a technical violation. It is hardly surprising that in L.A. County, technical rule violations, not new criminal offenses, led to more than 90% of the terminations and reincarcerations applied to people on electronic monitors.

 

Ankle monitoring also further entrenches the very racial and economic inequities that bail reform sought to address. In 2021, 84% of people on pretrial electronic monitoring in L.A. County were either Black or Latinx.  And in most places, though not in L.A., people on ankle monitors before trial are required to pay for the device.   These fees are on top of other costs, such as electric bills (to charge the monitor), cellphone bills (to communicate with the monitoring agency) and the cost of care and transportation for family members that is required because people on monitors often cannot leave home....

There is, however, some reason for optimism.  After years of community organizing, L.A. County’s Board of Supervisors recently passed a motion to develop an independent pretrial services agency within a new Justice, Care and Opportunities Department that takes over the role that probation plays in pretrial services.  This new agency has the ability and authority to end the county’s needless reliance on electronic monitoring.  We urge officials to focus on innovative solutions that rely on community-based support rather than punitive and harmful surveillance technology.

"Card Carrying Sex Offenders"

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

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

"Waiting for Relief: A National Survey of Waiting Periods for Record Clearing"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this report's starting portion of its introduction:

Background: This report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years, a period that typically (though by no means invariably) commences after completion of the court-imposed sentence.  Also typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law.  These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. 

Contents of the Report: Following this introduction, the report consists of two 50-state Tables, one showing the waiting periods applicable to clearing of misdemeanors, and the other showing the waiting periods applicable to clearing of felonies, with states that have no general record clearing listed at the bottom of each table.  The Tables are followed by maps showing the geographical distribution of waiting periods for each type of conviction.  The maps are followed by an appendix describing in greater detail the laws governing waiting periods in each of the jurisdictions studied.

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

• Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency" 
• Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption
• Effective review of (just some) issues surrounding home confinement for the Biden Justice Department
• Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded 
• Prez Biden reportedly considering, for home confinement cohort, clemency only for "nonviolent drug offenders with less than four years" left on sentence 
• New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"
• With new OLC memo allowing home confinement cohort to stay home, what now of Prez Biden's nascent clemency efforts?

Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?

Today seemed to be the day for high-profile convictions of TV stars (or maybe not-quite stars).  Not long after the federal conviction of Josh Duggar in Arkansas (basics here), a state jury in Chicago returned a guilty verdict on 5 of 6 counts brought against Jussie Smollett.  This AP piece provides the basics, as well as a sentencing forecast:

Former “Empire” actor Jussie Smollett was convicted Thursday on charges he staged an anti-gay, racist attack on himself nearly three years ago and then lied to Chicago police about it....

The jury found the 39-year-old guilty on five counts of disorderly conduct — for each separate time he was charged with lying to police in the days immediately after the alleged attack. He was acquitted on a sixth count, of lying to a detective in mid-February, weeks after Smollett said he was attacked.

Outside court, special prosecutor Dan Webb called the verdict “a resounding message by the jury that Mr. Smollett did exactly what we said he did.” Smollett “wreaked havoc here in the city for weeks on end for no reason whatsoever," then compounded the problem by lying under oath to the jury, Webb said....

Judge James Linn set a post-trial hearing for Jan. 27, and said he would schedule Smollett's sentencing at a later date. Disorderly conduct is a class 4 felony that carries a prison sentence of up to three years, but experts have said if convicted, Smollett would likely be placed on probation and ordered to perform community service.

The damage to his personal and professional life may be more severe. Smollett lost his role on the TV program “Empire” after prosecutors said the alleged attack was a hoax, and he told jurors earlier this week, “I’ve lost my livelihood.”

This local article, headlined "Here's what could happen during Jussie Smollett's sentencing after his guilty verdict," also suggests incarceration time is unlikely in this case:

A jury at the Leighton Criminal Court Building decided Smollett was guilty on five of six charges relating to false statements prosecutors said he made to Chicago police.

Those charges are listed as class 4 felonies, which are among the least serious felonies in Illinois, but can still carry potential prison time of up to three years. Experts have said Smollett will likely be placed on probation and ordered to perform community service due to his lack of criminal history.

"Because Mr. Smollett does not have a criminal history, there is a presumption that he would be given a form of probation," said Attorney Anthony Burch. "So I don't suspect that he would be taken into custody."

ACLU sues Biden Administration for data on CARES home confinement cohort

This ACLU press release reports on a notable new lawsuit: "The American Civil Liberties Union and ACLU of the District of Columbia today filed a lawsuit against the Department of Justice and the federal Bureau of Prisons under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society."  Here is more:  

Recognizing the dangers of COVID spread in federal prisons, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’ spread.  As a result, BOP has placed more than 34,000 people — including many elderly or medically vulnerable — on home confinement since March 2020.  BOP evaluated every single person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 are on home confinement currently. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP director and medical director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.”  But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, people on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding.  Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.

The BOP has not disclosed how many of the 7,769 people currently on home confinement may be forced back to prison. Although the Biden administration has said that the president will consider granting clemency to a subset of this group so that they will not be sent back to prison, he has not yet granted any such petitions.  The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under CARES and following the rules.

Under the Freedom of Information Act, the ACLU requested records providing information about people BOP moved to home confinement under the CARES Act. The ACLU also asked for any final DOJ and BOP policies implementing the OLC memorandum.  The government failed to provide the materials by the deadline.  Our lawsuit, filed today in federal court in the District of Columbia by the ACLU and the ACLU of the District of Columbia, asks the court to enforce the law against the Justice Department and the BOP and order them to immediately produce the requested records.

The full complaint is available here. 

"A New Generation of Prosecutors Is Leading the Charge to Reimagine Public Safety"

The title of this post is the title of this notable recent report from Data for Progress authored by Prerna Jagadeesh, Isa Alomran, Lew Blank and Gustavo Sanchez. Here is part of its introductions:

Local prosecutors possess unparalleled power within criminal legal systems across the country.  Also commonly referred to as District Attorneys, State’s Attorneys, Commonwealth Attorneys and County Attorneys, local prosecutors are responsible for the vast majority of criminal cases brought in the United States.  They have nearly unlimited discretion in deciding who to charge, the type of crimes to charge, and the severity of punishment at sentencing.  They are also primarily responsible for determining who stays in jail and who can be released back to their communities while awaiting trial, and they wield unmatched influence in determining the kind of criminal laws and penalties enacted by state legislatures.

Over the past five decades, prosecutors have deployed their power to charge and sentence even more people, relying heavily on incarceration or correctional supervision to control and punish people convicted of crimes.  While public safety was the purported justification for this approach, a growing body of research is finding that incarceration is ineffective at deterring crime and fails to prevent violent crime in the long-term.  Meanwhile, it has generated devastating consequences for many communities — particularly communities of color — in both direct and indirect ways. Mass incarceration has destabilized communities, worsened outcomes for children with incarcerated parents, increased morbidity and mortality, perpetuated generational wealth gaps, exacerbated mental illness among those incarcerated, and increased homelessness, alongside many other collateral consequences. ...

Notably, the prosecute-and-convict approach has also neglected the interests of those who have experienced and survived crime.  According to a groundbreaking survey of crime survivors conducted by the Alliance for Safety and Justice, the vast majority of victims –– who are more likely to be low-income, young, people of color –– prefer solutions that focus on alternatives to incarceration, such as job creation, crime prevention, rehabilitation, drug use and mental health treatment, among others.  In particular, seven out of ten would rather see prosecutors invest in solving neighborhood problems through rehabilitation, not prosecution and incarceration.

As a result, a growing number of prosecutors have begun to reimagine public safety in ways that reduce the use of prosecution and incarceration, create more effective and less destructive accountability strategies, end racial disparities, and address the drivers of criminal behavior as well as the needs of those most impacted by crime....

In the summer of 2021, Data for Progress surveyed 19 of these reform-minded prosecutors to identify their approaches to community safety, key policy changes, goals for the future, and obstacles impeding their efforts to achieve transformational change.  Their responses are detailed more fully below.

"Specialization in Criminal Courts: Decision Making, Recidivism, and Re-victimization in Domestic Violence Courts in Tennessee"

The title of this post is the title of this new paper now available via SSRN authored by Aria Golestani, Emily Owens and Kerri Raissian. Here is its abstract:

Local governments increasingly rely on “specialized” or “problem solving” courts as a way to improve the provision of criminal justice.  Using administrative data on misdemeanor DV cases between 2000 and 2006, we exploit the arbitrary courtroom assignment of low-income defendants to evaluate the social impact of specialized domestic violence courts in the General Sessions Court of Metropolitan Nashville and Davidson County, Tennessee.  We find that, compared to traditional court, defendants assigned to specialized court are less likely to be convicted, but no more likely to be charged with a future crime 1 to 3 years later.  This offender-focused measure of recidivism masks a potentially important increase in safety.  Police records suggest that victims in cases assigned to specialized court are less likely to be involved in a future domestic incident.  Conditional on future police involvement, these same victims appear to be more willing to cooperate with police and prosecutors.

Checking in with Oregon's drug decriminalization effort one year in

Stateline has this effective piece, headlined "Oregon’s Drug Decriminalization May Spread, Despite Unclear Results," providing an update of sorts on Oregon's experience one year after a ballot initiative enacted statewide drug decriminalization.  I recommend the full piece, and here are excerpts:

Progressive lawmakers and civil rights groups want more states to follow Oregon’s recent example and drop criminal penalties for carrying small amounts of heroin, cocaine or other drugs, and to spend more money on addiction recovery services.  They say substance use disorder should be treated as a disease, rather than as a crime.

Democratic lawmakers in Maine, Massachusetts, Rhode Island and Vermont all proposed decriminalization bills this year.  Advocacy groups hope to get a decriminalization measure on the ballot in Washington in 2022 and in California in 2024, said Matt Sutton, director of public relations for the Drug Policy Alliance, a New York-based nonprofit.  The Drug Policy Alliance helped fund the ballot initiative that resulted in Oregon’s new law, which took effect in February.

But Oregon’s experience shows that it’s easier to eliminate criminal penalties than to ramp up behavioral health services and get more people to use them.  In fact, critics of decriminalization say such policies could decrease access to treatment, because fewer low-level offenders will be pushed into court-ordered programs....

The law will use marijuana tax revenue — plus any criminal justice money saved through decriminalization — to fund organizations that help people seek and maintain sobriety. Those services could include peer support groups and transitional housing programs. Such organizations will get about $300 million over the next two years [which is estimated to be] about five times the amount Oregon is currently spending on services that aren’t provided through Medicaid, the public health insurance program for people who have low incomes or disabilities. About $30 million already has been disbursed....

Drug arrests and convictions have plummeted in Oregon since February.  The ballot measure made possessing small amounts of drugs — such as less than a gram of heroin, or less than two grams of cocaine — a civil citation punishable by a $100 fine rather than a crime.  It also downgraded felony charges to misdemeanors for possessing slightly larger amounts.

The measure established a hotline that people whom police ticket for possession can call to undergo a health assessment.  If they complete the assessment, they can get their citations waived, even without further treatment or other services.  The law also requires the state to establish addiction recovery centers to connect people who use drugs with treatment or other assistance, such as housing or overdose prevention education.

Before decriminalization, in 2019, Oregon law enforcement officers made more than 6,700 arrests and courts issued more than 4,000 convictions for drug possession in cases where possession was the most serious potential charge, according to the Oregon Criminal Justice Commission....  Between February and August this year, law enforcement made 1,800 arrests for such possession crimes and courts issued 364 convictions.  Defendants most likely were arrested for carrying large amounts of drugs or for drug dealing offenses, said Ken Sanchagrin, executive director of the commission. 

Decriminalization doesn’t appear to be leading to a rise in drug-related crime, such as property crime.  Property crimes in the state actually decreased this year, according to data provided by the criminal justice commission and the judicial department.

It’s less clear whether decriminalization has led more people to seek help for substance use disorders.  Defendants failed to show up in court to make their case against about half of 1,300 citations issued through September for possession of small amounts of drugs, according to the Oregon Judicial Department.  In only seven cases did defendants submit a health assessment to get their fines waived.  To critics of the new law, the seldom-used hotline proves that decriminalization isn’t working....

Policymakers nationwide likely will be watching Oregon for policy insights, said Beau Kilmer, director of the RAND Drug Policy Research Center at the RAND Corporation, a California-based research group.  But the Oregon law is so new — and is being implemented at such an unusual time, during a global pandemic — that it’s hard to tell whether it’s working as intended, he said.  “I suspect voters in other states will be considering this before we have hard evidence on it.”

"Towards A New Framework for Achieving Decarceration: A Review of the Research on Social Investments"

The title of this post is the title of this new paper from the Square One Project at Columbia University authored by Laura Hawks, Evangeline Lopoo, Lisa Puglisi and Emily Wang. Here is a portion of the long paper's introduction:

[T]his paper aims to examine the science behind sustainable decarceration — and the extent to which there is scientific support for how community organizations and societal entities can lead decarceration efforts in concert with continued legal reforms to descale facility-based and community corrections populations.  To be sure, academics of disparate ideology have previously studied sections of this road map.  Some support the need for improving correctional programming, including a risk-needs-responsivity model of correctional programming, which aims to optimize resources within correctional systems to rehabilitate those incarcerated.  Others, including Professors Angela Davis and Ruth Wilson Gilmore, conceptually reject reforms within the correctional sector and propose a framework for dismantling the prison industrial complex that emphasizes investments in alternate sectors, prioritizing economic and political liberation of the historically oppressed (Davis 2005; Wilson Gilmore 2007).  With this paper, we intend to add to this latter school of thought by systematically cataloguing community investments detached from the criminal legal system which promote decarceration.  We then highlight what academics have not yet sought to study.  We undertake this study with the belief that decarceration is as worthy of careful study and investment as the prevention of cardiovascular disease and warrants experimentally designed studies at the individual and community level which tests the short and long-term benefits of intervention, dose of intervention, and the costs and benefits to society.

To our knowledge, no review has identified and synthesized the experimental evidence to determine which community investment efforts effectively support ongoing decarceration efforts and which do not.  To fill this gap, we have conducted a scoping review to identify interdisciplinary interventions, detached from the correctional control system, in the domains of education, housing, healthcare, employment, and social support programs that help reduce incarceration by reducing likelihood of becoming involved in the criminal legal system (referred to in this paper as incident incarceration) or repeat involvement in the criminal legal system (referred to in this paper as recidivism).  We centered our review on the following research question:

Which interventions (including social policies) grounded in community investment have been shown to achieve decarceration as measured by reduced incident incarceration or reduced recidivism?

"Sex Offender Registration in a Pandemic"

The title of this post is the title of this new piece authored by Wayne Logan now posted on SSRN. Here is its abstract:

This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information.  Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted.  As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible.  If they failed to satisfy the registration requirement they faced significant criminal punishment.

The in-person registration requirement remained in effect even though registrants often share many of the same health and age-related characteristics of the broader at-risk population, risks often aggravated by sanitary problems associated with chronic homelessness (e.g., lack of access to soap for hand washing) that registrants often experience.  As a result, in-person registration posed the threat of registrants transmitting and contracting the virus, affecting not only the registrants themselves, but also friends, family, and employers, as well as the governmental authorities with whom they had to interact.  As states and localities undertook aggressive measures to stem the spread of COVID-19, the persistence of in-person registration provides a stark reminder of the continued exceptionalism of registration and the population it targets (individuals convicted of sex offenses).

The Essay explores the reasons accounting for this distinctiveness and provides some thoughts on how and why in-person registration persisted in the early stages of the pandemic when so many other governmental operations were suspended or significantly modified.

Notable new report spotlights onerous nature of electronic monitoring in US

This new NBC News piece, headlined "Other than prison, electronic monitoring is 'the most restrictive form' of control, research finds" report on this interesting new report from folks at George Washington University Law School, titled "Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System."  Here are excerpts from the press piece:

In the past 18 months, as the judicial system has increasingly used electronic monitoring instead of prisons to monitor inmates through the coronavirus pandemic, newly released data confirm what activists and advocates have long argued: Ankle monitors are onerous, and they often subject wearers to vague rules, like avoiding people of “disreputable character.”  The ankle monitoring business, the research found, is also dominated by four profit-seeking companies, and it ultimately could drive more people back to prison.

The new, comprehensive collection of hundreds of electronic monitoring-related rules, policies and contracts, obtained through public records requests across 44 states, demonstrates that four companies that make millions of dollars a year account for 64 percent of the contracts examined in the study.  The companies — Attenti, BI Inc., Satellite Tracking of People LLC and Sentinel Offender Services LLC, according to the report — also keep location data indefinitely, even after monitoring is completed, which is within the law.  Governments also often require family members or employers to act as agents of the government and report potential violations, putting them in an awkward position in which they must be both supportive and supervisory.

Crucially, wearers must pay both one-time and ongoing fees for the monitors, which can be $25 to over $8,000 a year.  The report argues that such costs “undermine financial security when it is needed most.”  By comparison, the Justice Department’s Bureau of Prisons said in 2018 that it costs just under $100 per day to incarcerate a federal inmate, or over $36,000 a year....

“This is a form of incarceration that happens outside of prison walls,” said Kate Weisburd, an associate professor of law at George Washington University, who led a team of 10 law students that filed and analyzed the trove of documents . “It’s always intended to be a positive alternative to incarceration.  But based on what we found, it’s doing the opposite.  More rules and more surveillance generally leads to higher incarceration.”...

Put another way, people on monitors are subject to a vast number of government rules, which “makes compliance difficult,” according to the report.  Some of the rules are quite vague.  For example, the Alabama Bureau of Pardons and Parole mandates that wearers “shall abandon evil associates and ways,” while the New Mexico Corrections Department says parolees must “maintain acceptable behavior.”...

Weisburd’s research found that because the results are open to interpretation and wearers can be hit with “technical violations” of the rules, “people are more likely to be reincarcerated for minor infractions that previously would have been invisible and ignored.”  In most cases, electronic monitoring is coupled with a form of house arrest — wearers must stay at or near their homes for a certain amount of time. They cannot leave without permission in advance.  But according to the policies and contracts that Weisburd and her team obtained, most agencies do not clearly explain how far in advance such permission must be sought. “Basically, every record we looked at had a negative impact, and by every measure it undermines people’s ability to survive outside of prison,” she said. “Just having to comply with the sheer number of rules, vague and broad rules, it means people are getting dinged more easily.”...

The most recent data from the Pew Charitable Trust, released in 2016, found that about 131,000 people were on monitors during a single day.   Weisburd and her team say in the report that “it is likely that the numbers are higher considering the pressure to release people from incarceration because of the pandemic.”...  The frequency with which such monitoring is assigned varies wildly across the country.  For example, Weisburd’s research shows that over 11,000 people who are on probation are also on monitors in Marion County, Indiana, alone, while the entire state of Florida has less than half that number, at just over 5,400.

Here is the introduction of the 54-page report:

The use of surveillance technology to tag and track people on pretrial release, probation and parole is on the rise.  The COVID-19 crisis in prisons and jails, bail reform efforts and bipartisan support for curbing mass incarceration accelerated interest in purported alternatives to incarceration.  As a result, the use electronic monitoring devices, including GPS-equipped ankle monitors, went up dramatically.

Thanks to the leadership of community organizers and advocates, the harmful and racialized nature of this type of carceral surveillance has been exposed.  This report seeks to add to those efforts by examining the specific policies, procedures, contracts and rules that govern the use of electronic monitoring of people on probation, parole and pretrial release.  Drawing on over 247 records from 101 agencies across 44 states and the District of Columbia, this report focuses on the operation of electronic monitoring and reveals the degree to which monitoring impacts all aspects of everyday life and undermines the ability of people to survive and thrive.  In particular, this report focuses on the specific rules and policies governing people on monitors and how they restrict movement, limit privacy, undermine family and social relationships, jeopardize financial security and result in repeated loss of freedom.  Unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive.  The findings in this report demonstrate what advocates have long said: Electronic surveillance is not an alternative to incarceration, it’s an alternative form of incarceration.  And like incarceration, the deprivations and restrictions of electronic monitoring further entrench race and class-based subordination.

"'They’re Taking My Stuff!' What You Need to Know about Seizure and Forfeiture"

The title of this post is the title of this new report by Dan Greenberg with the Competitive Enterprise Institute.  Here is its executive summary:

Law enforcement officers in the United States seize billions of dollars in cash and other personal property from members of the public every year.  Most of this seized property is eventually forfeited to state and federal governments.  These seizures and forfeitures rarely require proof of criminal conduct; rather, they often rest merely on the suspicion that the property in question is related to a crime.  As critics of these practices have noted, seizure and forfeiture sometimes result in confiscation of the property of innocent, law-abiding civilians.  Furthermore, because the proceeds of forfeiture typically go straight to law enforcement budgets, this creates perverse incentives that make it more likely that law enforcement officers and prosecutors might devote disproportionate effort to this endeavor.

This paper explains how seizure and forfeiture work.  More precisely, it contains an account of the relatively minimal legal protections that law-abiding civilians have against both seizure and forfeiture.  The paper also provides strategies that the law-abiding civilian can use to reduce the chance of having property seized while traveling.