Sentencing Law and Policy

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.

"Punishment and the Body"

The title of this post is the title of this notable new article authored by Christopher Belshaw that I just saw in the new Journal of Controversial Ideas.  Here is its abstract:

Suppose we accept that punishment can be legitimate.  What form should it take?  Many of us believe that it can be acceptable to fine or imprison someone, but that capital punishment, along with corporal punishment in its various manifestations, is wholly unacceptable.  I suggest that it is hard to account for or justify this distinction.  But granting that resistance to these latter forms is unlikely to be dislodged, and granting too that imprisonment in particular is hardly problem-free, it is worth considering whether there might be alternatives.  And I argue here that we should consider enforced coma as a procedure having many advantages over the more familiar methods of delivering a penalty.  Of course, there are disadvantages also.  The aim isn’t to offer a detailed and practical solution to the problem of crime, but to explore some of the presumptions and principles involved in our thinking about punishment.

Lots of interesting sentencing issues as South Dakota's Attorney General avoids any incarceration after killing pedestrian

This AP piece, headlined "An Attorney General Won't Serve Any Jail Time For A Crash That Killed A Pedestrian," reports on the details of a notable resolution to a high-profile criminal case involving the top legal official in the Mount Rushmore State. Here are some details:

South Dakota Attorney General Jason Ravnsborg pleaded no contest Thursday to a pair of misdemeanor traffic charges over a crash last year that killed a pedestrian, avoiding jail time despite bitter complaints from the victim's family that he was being too lightly punished for actions they called "inexcusable."

Circuit Judge John Brown had little leeway to order jail time.  Instead, he fined the state's top law enforcement official $500 for each count plus court costs of $3,742.  Brown also ordered the Republican to "do a significant public service event" in each of the next five years near the date of Joseph Boever's death — granting a request from the Boever family.  But he put that on hold pending a final ruling after Ravnsborg's attorney objected that it was not allowed by statute.

Ravnsborg said in a statement after the hearing that he plans to remain in office.  The plea capped the criminal portion of a case that led Gov. Kristi Noem — a fellow Republican — and law enforcement groups around the state to call for his resignation.  But he still faces a likely lawsuit from Boever's widow and a potential impeachment attempt.

Ravnsborg's statement accused "partisan opportunists" of exploiting the situation and said they had "manufactured rumors, conspiracy theories and made statements in direct contradiction to the evidence all sides agreed upon."  Noem, in a statement afterward, pushed the Legislature to consider impeachment and said she ordered the House speaker be given a copy of the investigative file. Impeachment proceedings halted in February after the judge barred state officials from divulging details of the investigation. Lawmakers indicated then that they might resume after the criminal case ended.

The attorney general was driving home to Pierre from a political fundraiser on Sept. 12 when he struck Boever, who was walking on the side of a highway. In a 911 call after the crash, Ravnsborg was initially unsure about what he hit and then told a dispatcher it might have been a deer. He said he didn't realize he struck a man until he returned to the crash scene the next day and discovered the body of Boever, 55.

Ravnsborg pleaded no contest to making an illegal lane change and using a phone while driving, which each carried a maximum sentence of up to 30 days in jail and a $500 fine. Prosecutors dropped a careless driving charge.

Ravnsborg didn't attend the hearing — he didn't have to and was represented by his attorney, Tim Rensch. That angered Boever's family. "Why, after having to wait nearly a year, do we not have the chance to face him?" Boever's sister, Jane Boever, asked the court. She said "his cowardly behavior leaves us frustrated."

She said her brother was "left behind carelessly" the night he died. She accused Ravnsborg of running down her brother and then using his position and resources to string the case along. She said he has shown no remorse, and only "arrogance toward the law." Jane Boever called the punishment "a slap on the wrist."

"Our brother lay in the ditch for 12 hours," she said. "This is inexcusable." Boever's widow, Jennifer Boever, said Ravnsborg's "actions are incomprehensible and ... cannot be forgiven."

Rensch pushed back hard on the family's criticism, calling the attorney general an "honorable man." Rensch said Ravsnborg had been consistent from the beginning that he simply did not see Boever. And he noted that the case was "not a homicide case, and it's not a manslaughter case."

"Accidents happen, people die. It should not happen. No one wants anybody to die," he said. Rensch told reporters after the hearing that Ravnsborg had cooperated fully with investigators by sitting down for two interviews and allowing his phones to be analyzed. "Basically just take your shirt off and say, 'Here I am, bring it on.' I'll answer anything you've got, and that's what this guy did," Rensch said.

Beadle County State's Attorney Michael Moore, one of the prosecutors, agreed that the attorney general had been cooperative. He was also satisfied with Ravnsborg's punishment and the crash investigation. "Because of who it was and the high profile nature of the case, the investigation was a lot more thorough," he said.

After a months-long probe led to prosecutors charging Ravnsborg with the three misdemeanors in February, Noem put maximum pressure on Ravnsborg to resign, releasing videos of investigators questioning him. They revealed gruesome details, including that detectives believed Boever's body had collided with Ravnsborg's windshield with such force that part of his eyeglasses were deposited in the backseat of Ravnsborg's car.

Prosecutors said Ravnsborg was on his phone roughly one minute before the crash, but phone records showed it was locked at the moment of impact. Ravnsborg told investigators that the last thing he remembered before impact was turning off the radio and looking down at the speedometer. A toxicology test taken roughly 15 hours after the crash showed no alcohol in Ravnsborg's system, and people who attended the fundraiser said he was not seen drinking alcohol.

Ravnsborg adamantly denied doing anything wrong. He insisted he had no idea he hit a man until returning to the crash site and that he is worthy of remaining the state's top law enforcement officer. "Joe's death weighs heavily on me and always will," Ravnsborg said in his statement. "I've often wondered why the accident occurred and all the things that had to have happened to make our lives intersect."

Ravnsborg's insistence on remaining in office has opened a divide among Republicans, with him retaining support among some GOP circles. The attorney general has been spotted working booths for local Republican groups at county fairs in recent weeks. But popular predecessor Marty Jackley is already running for his old job and has collected the support of most of the state's county prosecutors. Political parties will select candidates for attorney general at statewide conventions next year....

Boever's family said they hope Ravnsborg is driven from office one way or another. "It is not too late for the state Legislature to resume impeachment proceedings," Jane Boever said. "And if they fail us, then it's left to the voters of South Dakota to remove him from the ballot box."

The sentencing nerd in me is struck by the fact that Judge Brown, in response to a request from the victim's family, "ordered the Republican to 'do a significant public service event' in each of the next five years near the date of Joseph Boever's death." I am not sure what that exactly means, but apparently the SD AG's lawyer thinks it is "not allowed by statute."  I also wonder if the possible, but not certain, prospect of Ravnsborg losing his job may have influenced the prosecutors to accept this deal.  (And, the Criminal Law professor in me also thinks this might be a good hypo when I teach omission liability next week.)

Because the exact facts are a bit opaque (e.g., was the victim killed instantly and why and how was he walking on a "highway"), I am still not sure what to make of this sentencing outcome.  But I would certainly be eager other perspectives.

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

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
• FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?
• Hoping grandmothers and others on home confinement get compassionate consideration
• New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends
• Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action) 
• 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 

"Can Restorative Justice Conferencing Reduce Recidivism? Evidence From the Make-it-Right Program"

The title of this post is the title of this new NEBR working paper authored by Yotam Shem-Tov, Steven Raphael and Alissa Skog. Here is its abstract:

This paper studies the effect of a restorative justice intervention targeted at youth ages 13 to 17 facing felony charges of medium severity (e.g., burglary, assault).  Eligible youths were randomly assigned to participate in the Make-it-Right (MIR) restorative justice program or to a control group in which they faced criminal prosecution.  We estimate the effects of MIR on the likelihood that a youth will be rearrested in the four years following randomization.  Assignment to MIR reduces the likelihood of a rearrest within six months by 19 percentage points, a 44 percent reduction relative to the control group.  Moreover, the reduction in recidivism persists even four years after randomization.  Thus, our estimates show that juvenile restorative justice conferencing can reduce recidivism among youth charged with relatively serious offenses and can be an effective alternative to traditional criminal justice practices.

"Bridging the Gap: A Practitioner’s Guide to Harm Reduction in Drug Courts"

The title of this post is the title of this notable new report from the Center for Court Innovation and authored by Alejandra Garcia and David Lucas. Here is the first part of the report's introduction:

Drug law reforms across the country are trending toward decriminalization and public healthinformed responses, and away from the carceral strategies of the past. These historic changes are likely to impact drug court operations significantly. Fewer drug-related arrests means fewer referrals to drug courts, and a lighter hand in sentencing will reduce the legal leverage that has long been used to incentivize participation. The overdose crisis, COVID-19, and renewed demands for racial equity and legal system transformation have also given rise to a more expansive discourse around drug use, mental health, and community safety. Alongside this shift, harm reduction initiatives are being supported at the local, state and federal level on a scale never seen before.

At their inception, drug courts represented a new way of thinking about the intersection of addiction and crime in society. Offering a treatment alternative to jail or prison, the model aimed to address the harms — and ineffectiveness — of incarcerating drug users. Today, however, criminal legal system reformers are calling into question some of the model’s most defining features, which remain largely coercive and punitive. Moving forward, drug courts can expect to face increasing pressure from public health experts and harm reduction advocates to abandon the abstinence-only model, eliminate jail sanctions, and overhaul their drug testing protocols.

This document is an attempt to provide a fresh perspective on several foundational drug court practices and the inherent challenges of this work. It argues that the most effective way for drug courts to evolve — and do less harm — involves integrating the practices and principles of harm reduction. Drug courts and the harm reduction movement will continue to co-exist for some time and face similar system barriers while serving many of the same people. As such, this document represents a conversation that is new and necessary — one that aims to bridge the gap between these contrasting paradigms for the benefit of those who participate in drug courts.

Is it problematic for sentencing judges to require the COVID vaccine as a probation condition?

The question in the title of this post is prompted by this new New York Times article headlined "Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases." Here are excerpts:

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday. “I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates. The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”...

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections. “Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine. “Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded....

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.” He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”

Highlighting the importance of data to ensure equity in diversion efforts

Regular readers are probably used to hearing me stress the importance of data in various aspects of our criminal justice systems, and so I was pleased to see this new Law360 piece headlined "Data Collection Is Crucial For Equity In Diversion Programs." I recommend the lengthy piece in full, and here is how it starts:

Prosecutorial diversion programs are intended to create equity in the criminal justice system by stopping the incarceration of people who have mental health and substance abuse problems, but without proper data collection, prosecutors can't ensure equity in these programs, experts say.

The Prosecutorial Performance Indicators project, an initiative led by researchers at the Florida International University and Loyola University of Chicago to help prosecutors collect data to improve their methods, recently released a report that looked at racial disparities in the number of people who had their cases diverted from criminal courts to diversion programs, like mental health or drug courts.

According to the report that compared the race and ethnicity of people placed in diversion programs in four prosecutors' offices in Chicago, Jacksonville, Milwaukee and Tampa, even though overall more Black defendants than white were placed in diversion programs in three of the four cities, more white defendants than Black defendants had their felony cases placed in diversion programs in all of the cities.

With this data, prosecutors in these offices can use it to guide their policies and prosecutorial decisions, according to Melba Pearson, director of policy and programs at FIU's Center for Administration of Justice and a PPI co-manager. "While diversion is a great tool, we have to make sure that it's applied equitably, so that includes looking at factors like cost, accessibility [and] how offers are being delivered," Pearson told Law360.

In Jacksonville, the data shows that, from 2017 through 2019, the number of Black defendants that had their misdemeanor cases diverted from prosecution grew because its prosecutor's office implemented a program that gives people charged with misdemeanor traffic violations an opportunity to have their charges dropped.

The full report referenced in this article, which is titled "Race and Prosecutorial Diversion: What we know and what can be done," is available at this link.

"Building exits off the highway to mass incarceration: Diversion programs explained"

The title of this post is the title of this great new report authored by Leah Wang and Katie Rose Quandt for the Prison Policy Initiative. I recommend the report in full, and here is how it gets started:

Our nation’s mass incarceration crisis has led to far too many people locked up in jails and prisons.  As public outrage grows regarding the unfairness of the criminal justice system, counties and municipalities are adopting a wide range of programs that divert people out of the system before they can be incarcerated, pitching these as solutions to reduce the number of people in confinement.  But these programs are not all created equal, and the design and implementation of diversion can be wildly different in its impact on justice-involved people.

We envision the criminal justice system as a highway on which people are heading toward the possibility of incarceration; depending on the state or county, this highway may have exit ramps in the form of diversion programs and alternatives to incarceration.  Diversion is a broad term referring to any means of exiting the criminal justice system without a criminal conviction, while an alternative to incarceration can be offered to someone who has been convicted.

The further someone travels down the highway, the more collateral consequences they will experience: a police encounter that may turn dangerous; the trauma of being booked; their mugshot published on the internet; massive amounts of time spent away from work and family for jail time or court appearances; the financial burden of bail and court costs; and a criminal record that generates numerous other challenges like exclusion from the workforce, ineligibility for public benefits, disenfranchisement, and denial of the right to serve on a jury.

The earlier someone can take an exit ramp, the more devastating impacts they can avoid — and the more we can shrink the massive footprint of the criminal justice system.  This report provides a general overview of diversion and alternative-to-incarceration programs, and key differences in how they might alleviate (or complicate) someone’s experience going through the system.

In an ideal world, a community would implement all or almost all of these programs, to help divert people at every stage.  But when resources — financial or political — are limited, it is important that policymakers make choices that will have the largest impact.  While all diversions are better than incarceration, the most powerful are the earliest interventions (which we’re calling “Exit 1”) that prevent encounters with police and the criminal justice system in the first place.

Asking hard (but incomplete) questions about electronic monitoring as an alternative to prison

I am glad to see that NBC News has this lengthy new article about electronic monitoring under the headline "Incarcerated at home: The rise of ankle monitors and house arrest during the pandemic." Unfortunately, the piece only scratches the surface concerning how the pandemic may have enduringly altered sentencing practices and the pros and cons of greater reliance on home confinement with electronic monitoring. I still recommend this piece, but I hope future coverage will gather more data and dig even deeper into  pandemic-era experiences on this important topic. In the meantime, here are excerpts from this lengthy NBC News piece:

During the pandemic, as jails raced to release incarcerated people because prisons became coronavirus hot spots, many judges nationwide responded by putting those who were being released in electronic ankle monitors that tracked their movements 24 hours a day.  Other people were assigned ankle monitors as an alternative to bail as they awaited trial in a backlogged court system that moved online.

Now, early data shows how much the use of electronic ankle monitoring rose nationwide during that time, according to research from Kate Weisburd, a law professor at George Washington University and a former juvenile defender. Researchers are finding that ankle monitors are keeping people connected to the prison system longer than ever, as more remain strapped to the devices for over a year.

“Everyone is looking for ways of getting people out of custody, which obviously is a good thing,” Weisburd said. “But what's happening in some jurisdictions in the adult system is that more and more people are being released on monitors as a response to decarceration.”

In Chicago, the Cook County Sheriff Office's use of ankle monitors for adults who are awaiting trial jumped from 2,600 people in April last year to over 3,500 in December, according to data from the Chicago Appleseed Center for Fair Courts, a research and civil liberties group that advocates to improve court processes and find alternatives to incarceration. Chief Adriana Morales of the sheriff’s office said in a statement that electronic monitoring is always court-ordered and confirmed that during Covid-19 there’s been a “dramatic increase” in orders for them.

Law enforcement departments that use electronic monitoring say the devices are supposed to serve as an alternative to incarceration and help people remain in their community rather than serving time in jail.  But interviews with people who have been incarcerated and then placed on ankle monitors and researchers who study recidivism say the surveillance devices hurt people trying to get their life on track after prison and that there’s no evidence the technology is rehabilitative.  They often drag adults and youth even deeper into the criminal justice system and sometimes back behind bars....

Law enforcement experts find that ankle monitors seem to work best for a targeted population, like adults who are found to be at high risk to reoffend, said Kelly Mitchell, executive director of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota. “But for your average drug and property offenses, it’s not a good use at all.”

Mitchell said electronic monitoring can be helpful from a probation officer’s perspective when keeping track of individuals who have committed more serious offenses or violent crimes but would still benefit from being taken out of the jail system. “Electronic monitoring can provide a little bit of extra something to monitor that person for a period of time if we decide that we’re ready to give them a chance in the community,” Mitchell said.

Ankle monitors were first developed by social psychologists in the 1960s in an effort to offer positive reinforcement to juvenile offenders.  They came into use by the justice system in the 1980s and early 1990s.  While they still offer the upside of an alternative to prison or jail, they have in recent years become the focus of growing skepticism — particularly as their use has widened.  Advocates for criminal justice reform say that while ankle monitors may appear preferable for people who hope to get out of jail sooner, they don’t address systemic issues that land so many people behind bars.

“We're not putting resources into their communities to address the issues of violence, to address the issues of unemployment and poverty and structural racism,” said James Kilgore, an author and activist with the Challenging E-Carceration project at the Center for Media Justice. “Instead we’re going to slap this thing on them so we can track them, and we can keep them locked up in their house.”...

Though electronic monitoring is cheaper for municipalities and states than jail, the cost of the surveillance device is often passed on to the people wearing them.  And during the pandemic, when millions of people lost their jobs and unemployment benefits were backlogged, that cost added up.  In at least 30 states, agencies require those who are placed in an electronic monitor to pay between $2 and $20 a day to wear one, not including activation fees that some counties tack on, according to Weisburd’s research.... 

While the cost of incarceration is higher than the cost of an ankle monitor and being on house arrest for many is a better option than being in jail, in places like Chicago, the majority of people who are on electronic monitoring are awaiting trial and have yet to be convicted. But unlike other jurisdictions, Cook County does not charge offenders....

Like so many electronics, ankle monitors also don’t always work. When the electronic monitor senses a violation, whether from not being charged at the right time or when someone steps outside their house at the wrong time, the company running the monitor notifies law enforcement. Then officers may be sent to the wearer’s home or work.

With the dramatic increase of people on ankle monitors during the pandemic in Chicago, local watchdogs say they’re seeing a rise in violations for small infractions. Matthew McLoughlin, an organizer with the Illinois Network for Pretrial Justice, said he’s also seen an increase in more false violations and technical glitches for people whose ankle monitors rely on GPS tracking.

Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon

As we mark 50 years waging the drug war in the United States, legal reforms and polls make clear that Americans are eager to embrace public health rather than punitive responses to drug activity.  But a growing political will to end the "war on drugs" does not instantly create a practical way forward.  Growing interest in ending the drug war makes it critical for policy markers and advocates to focus on "winning the peace" as we move beyond criminalization models.  But new NPR article, headlined "Oregon's Pioneering Drug Decriminalization Experiment Is Now Facing The Hard Test," highlights the many challenges lie ahead.  I recommend the piece in the full, and here are excerpts:

Oregonians overwhelmingly passed Measure 110 that makes possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs, punishable by a civil citation — akin to a parking ticket — and a $100 fine. That fee can get waived if you get a health screening from a recovery hotline.

The measure, a major victory for advocates pushing for systemic change in U.S. drug policy, expands funding and access to addiction treatment services using tax revenue from the state's pot industry as well as from expected savings from a reduction in arrests and incarceration....

But five months since decriminalization went into effect, the voter-mandated experiment is running into the hard realities of implementation. Realizing the measure's promise has sharply divided the recovery community, alienated some in law enforcement and left big questions about whether the Legislature will fully fund the measure's promised expansion of care.

Even many recovery leaders here who support ending the criminalization of addiction are deeply concerned the state basically jumped off the decriminalization cliff toward a fractured, dysfunctional and underfunded treatment system that's not at all ready to handle an influx of more people seeking treatment. Advocates for decriminalization "don't understand the health care side, and they don't understand recovery," says Mike Marshall, co-founder and director of the group Oregon Recovers. "Our big problem is our health care system doesn't want it, is not prepared for it, doesn't have the resources for it and honestly doesn't have the leadership to begin to incorporate that [expanded treatment]," says Marshall, who is in long-term recovery himself....

Oregon supporters of decriminalization point to Portugal as a reform model. In 2001, Portugal dramatically changed its approach and decriminalized all drugs. The nation began treating addiction as a public health crisis. There, anyone caught with less than a 10-day supply of any drug gets mandatory medical treatment. But Marshall and others point out that Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists. "So we put the cart before the horse," he says. In fact, Marshall and others worry the treatment and harm reduction horse isn't even on its feet in Oregon, which is leaving too many stuck in a dangerous pre-treatment limbo and at potential risk of overdosing. "There were no resources and no mechanisms in [Measure] 110 to actually prepare the health care system to receive those folks," Marshall says.

"Most places that have successfully done decriminalization have already worked on a robust and comprehensive treatment system," says Dr. Reginald Richardson, director of the state Alcohol and Drug Policy Commission. "Unfortunately, here in Oregon, we don't have that. What we have is decriminalization, which is a step in the right direction."

There's also shockingly little state data to determine what programs work best or to track treatment outcomes and share best practices. There's also no agreed upon set of metrics or benchmarks to judge treatment efficacy, both in Oregon and nationally.

Prior recent related post:

• Drug war ... huh ... after 50 years, what is it good for? 

Unanimous South Carolina Supreme Court decides sex offender registry is "unconstitutional absent any opportunity for judicial review to assess the risk of re-offending"

Last week, the South Carolina Supreme Court issued an interesting opinion about the state's sex offender registry in Powell v. Keel, No. 28033 (S.C. June 9, 2021) (available here), which concludes this way:

Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending.  Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.  Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.

Split Indiana Supreme Court finally rules that forfeiture of Tyson Timbs' Land Rover driven to small drug deal was constitutionally excessive

Well over two years ago, as blogged here, the Supreme Court ruled unanimously in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the that Excessive Fines Clause of Eighth Amendment applies to the states and then said little else about how that limit on punishment was to be applied. Upon remand, as blogged here, the Indiana Supreme Court some months later issued a lengthy opinion explaining its approach to the Clause while remanding case to the state trial court to apply this approach. And yesterday, the case returned to the Indiana Supreme Court as Indiana v. Timbs, No. 20S-MI-289 (Ind. June 10, 2021) (available here), and resulted in a split opinion in favor of Tyson Timbs. Here is how the majority opinion starts:

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover.  And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again.  During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines.  Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

But, until now, the proportionality inquiry remained unresolved — that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse?  The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019).  Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

Justice Slaughter concurs in the judgment with lengthy separate opinion that includes a notable baseball analogy while fretting that the "law we interpret for the public we serve demands more than our subjective 'totality' test can sustain."  And Justice Massa dissents with separate opinion that starts this way:

The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years.  And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited.  Still, I respectfully dissent.

The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation.  But I part ways with the Court’s holding that it was grossly so.  Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity.  No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

“Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

"Drug Supervision"

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

Criticism of harsh drug sentencing laws in the United States typically focuses on long prison sentences.  But our criminal justice system also inflicts a significant volume of drug-related punishment through community supervision — probation, parole, and supervised release.  Over one million people are under supervision due to a drug conviction, and drug violations are among the most common reasons for revocations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I show that drug sentencing is central to the federal system of supervised release.  While Congress created supervised release as a program of transitional support for former prisoners, the system has instead become a drug- control network focused on public safety.  The mandatory revocation provision at 18 U.S.C. § 3583(g) in particular was designed to immediately imprison people with drug addiction at the first sign of drug use.  This targeting of drug activity for enhanced punishment is so extreme that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond.

Effective review of (just some) issues surrounding home confinement for the Biden Justice Department

This new extended Hill article, headlined "DOJ faces big decision on home confinement," provide an effective accounting of the building discussion around the status of home confinement in the federal system as it appears the pandemic is winding down.  I recommend the full piece, and here are excerpts:

The Biden administration will soon have to decide whether to send back to prison thousands of inmates who were transferred to home confinement after the start of the COVID-19 pandemic.  President Biden and Attorney General Merrick Garland have been facing mounting calls to rescind a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Advocates and lawmakers argue that the program has been a resounding success, and that it would be unjust to reincarcerate thousands of individuals who abided by the terms of their home confinement.  “If you're one of these people, you're trying to figure out, 'Do I go back to college? Do I start a new job? Do I start a family? Do I sign a lease? I mean, what can I do, not knowing where I'm going to be in six months?’ That's cruel to keep somebody in that doubt and uncertainty for this long and to say, ‘You know, don't worry about it, it's not going to happen tomorrow,’” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

Last year, in response to the CARES Act, then-Attorney General William Barr directed the federal Bureau of Prisons (BOP) to prioritize home confinement for certain inmates in order to limit the spread of the coronavirus within the prison system.  According to the BOP, about 24,000 inmates have been released to home confinement since the beginning of the pandemic. Advocates say there are now about 4,500 people facing uncertainty about whether they might have to go back to prison after months of reintegrating into society.

BOP Director Michael Carvajal told a House Appropriations subcommittee in March that just 21 inmates released to home confinement were sent back to prison for alleged rule violations. And in the program overall, only one person has committed a new crime....

The uncertainty about the program’s fate began in January, a few days before President Biden's inauguration, when the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.

Randilee Giamusso, a BOP spokesperson, said the Biden administration had recently expanded the eligibility for home confinement.  “This is an important legal issue about the language Congress used in the CARES Act,” Giamusso said in a statement.  “It is important to recognize even under the Office of Legal Counsel's (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences.  For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”

Giamusso added that Biden recently extended the national emergency regarding COVID-19, and that the Department of Health and Human Services expects the public health crisis to last at least through December.  “The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.

Still, some lawmakers and advocates argue that the Trump-era policy would unnecessarily upend the lives of those deemed low-risk enough to be sent home and who have since abided by the terms of their home confinement.  Biden and Garland are facing pressure to rescind the policy memo, receiving letters from Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee; a bipartisan group of 28 House lawmakers; and a coalition of advocacy groups....

This past week, the White House told advocates that Biden is preparing to use his clemency powers, in what would be a rare early exercise of the power to commute or pardon incarcerated people.  Ring said rescinding the home confinement policy, or using another tool to keep those affected by it out of prison, is an easy way for Biden to show that he’s serious about taking on mass incarceration.

“They've said they want to use the clemency authority more robustly to let people out of prison who don't need to be there,” said Ring, who has served time in federal prison. “Well, here's 4,500 people that Bill Barr and Donald Trump cleared as the lowest of low risk. So if you can't find a way to keep these people home, I mean, how discouraging will it be for those who are hoping for clemency?”...

Experts and advocates alike see the home confinement policy as a radical experiment that yielded positive results, potentially adding more momentum to criminal justice reform efforts that have seen a growing bipartisan consensus against the tough-on-crime policies of the late 20th century.  Ring, of Families Against Mandatory Minimums, said lawmakers should consider the success of the home confinement program as a potential alternative to incarceration.  “I think this is still a good model or a good use of natural experiment to show that we can keep more people in the community, and not keep them in prison,” he said. “Congress should use what happened here as evidence for expanding home confinement going forward.”

But in the meantime, Ring said, the priority is for the Biden administration to make clear that it does not intend to re-incarcerate those who are serving their sentences out at home. “Not only do they need to fix it, they need to fix it immediately,” he said. “They need to announce to these people, ‘You're not going back. We're not making you go back. We'll rescind the memo or we'll use some other authority we have to fix this.' But these people need to get on with their lives.”

I am grateful for this effective review of not just the COVID-driven home confinement changes, but also the broader issue of whether this unfortunate "natural experiment" justifies a robust rethinking of home confinement as an alternative punishment.  And I think that issue need to be explored even further because I surmise that home confinement can end up meaning lots of different things for lots of different persons.  And, in addition to the wonderfully low number of problems with the COVID home confinement transfers, it will be interesting and important to track long-term recidivism rates for these groups. 

Some prior recent 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
• Might Prez Biden use his clemency power relatively soon?
• Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? 
• New detailed polling reveals broad support for broad use of clemency power to commute sentences

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

A few weeks ago in this post I flagged the notable new empirical research indicating that nonprosecution of nonviolent misdemeanor offenses produced a large reductions in the likelihood of new criminal complaints.  This research is rightly getting a lot of attention, though this new National Review piece wonders if it might be getting too much attention.  The piece, by Charles Fain Lehman, is headlined "Progressives Are Overreacting to a Startling Crime Study."  And though I might dicker with some points made in the piece, I recommend the full discussion.  Here are excerpts:  

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less flashy than felonies, but they are the main way Americans experience the criminal-justice system.

We prosecute misdemeanors because, among other things, we want there to be fewer of them, and we believe prosecution deters reoffending.  But a recent blockbuster paper makes a startling claim to the contrary: Prosecuting misdemeanants actually increases the likelihood that they will offend again.

The paper has been heralded by supporters of progressive district attorneys who have used their position to unilaterally impose reforms on the criminal-justice system, including refusing to prosecute many misdemeanants.  Boston D.A. Rachael Rollins, who provided the data for the study, has claimed it confirms the wisdom of her approach.  So have other reformers such as Chicago-area state’s attorney Kim Foxx and San Francisco district attorney Chesa Boudin.

Policy-makers, however, should exercise caution before reaching such expansive conclusions.  The paper can just as easily be read to endorse more modest reforms — especially keeping in mind long-established principles of criminal justice on which it is silent....

Most of the non-prosecution effect they measure is the result of first-time offenders, who become much more likely to commit crime if prosecuted.  By contrast, prosecuting repeat offenders of any sort has little discernible effect on the likelihood they will offend again in the future....  Diverting [first-time misdemeanants] offenders, with the threat of more serious punishment if they reoffend, could help clear dockets while minimizing crime. It would also free ADAs to focus on repeat misdemeanants....

The above approach is different from the idea that we should in general prosecute misdemeanants a lot less — a valid interpretation of the paper’s findings, but not necessarily the right one, for two reasons.

First, deterrence is not the only reason to prosecute an offender.  Advocates of not prosecuting misdemeanors tend to invoke “victimless” crimes such as drug possession and prostitution. But misdemeanors can also include offenses such as simple assault and auto theft — crimes that harm others.  Such crimes reasonably elicit a demand for retributive justice. It offends our moral sensibilities to think that a person who commits a serious but not felonious assault could get off scot-free.

Second, systematic reductions in leniency may affect all criminals’ decision-making, increasing their propensity to offend in the long-run. The paper shows that Rollins’s move toward non-prosecution of misdemeanors did not in the aggregate increase misdemeanor offenses, but the data it uses account only for the period between her election in January 2019 and March 2020, when the coronavirus crisis began.  It’s entirely possible that criminals will adapt, and misdemeanor offending will increase, in the long run....

Coming face to face with the justice system can be time-consuming and exhausting, and may, at the margins, increase rather than reduce a person’s propensity to offend.  Even those of us highly concerned with public safety should be interested in creative solutions that minimize crime and disorder.

At the same time, policy-makers should not get ahead of themselves — as some have in the rush to defund police departments and decrease the use of more serious charges.  Good research is the basis of good policy, and this research makes a valuable contribution to public-safety policy.  But we should be cautious in how far we go with it — careful changes around the edges are always safer than blanket transformations.

Prior recent related post:

• New empirical study finds "nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint"