Tuesday, April 20, 2021

Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors

The high-profile trial of Derek Chauvin for killing George Floyd resulted in a jury verdict this afternoon in a Minnesota court with guilt verdict on all three homicice charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. It is my understanding that, under Minnesota state sentencing guidelines, Chauvin would get a prison term of 12.5 years absent proof of aggrvating circumstances, so-called Blakely factors.

I believe that the the prosecution was prepared to argue numerous aggravating Blakely factors to the jury, but that CHauvin's legal team waived its right to jury determination on these issues so that they will now be argued to the judge. Though I am not an expert on Minnesota law, I believe that a judicial finding of aggravating factors in the coming weeks could make Chauvin eligible to receive a sentence up to the 40-year maximum on the second-degree unintentional murder conviction.

The Robina Institute has this helpful primer on Minnesota sentencing law, and it makes this important point about the usual approach to sentences increased based on aggravating factors under the state's sentencing guidelines:

The Guidelines do not themselves limit the degree of durational (length-of-custody) departure, but case law provides that upward departures may not exceed twice the presumptive prison term (the middle figure in grid cells above the disposition line; the sole figure in cells below the line) except in rare cases of extremely aggravated circumstances. (Cite to:  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). See also State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upholding the rule from Evans despite 27 years of changes to the guidelines).)

April 20, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Harsh penal treatment of some Capitol rioters being criticized by notable progressive

Politico continues its terrific coverage of prosecution of the Capitol rioters with this lengthy new piece fully headlined "Jan. 6 defendants win unlikely Dem champions as they face harsh detainment; 'Solitary confinement is a form of punishment that is cruel and psychologically damaging,' Sen. Elizabeth Warren said."  I am always pleased to see politicians who express concerns about the operation of our justice systems do so no matter who the defendants happen to be.  Here is how this story starts: 

Sen. Elizabeth Warren fled the Capitol on Jan. 6 from a mob she later called domestic terrorists. Now she and another Senate Democratic leader are standing up for their attackers' rights as criminal defendants.

Most of the 300-plus people charged with participating in the Jan. 6 Capitol riot have been released while they await trial, but dozens of those deemed to be dangerous, flight risks or at high risk of obstructing justice were ordered held without bond. D.C. jail officials later determined that all Capitol detainees would be placed in so-called restrictive housing — a move billed as necessary to keep the defendants safe, as well as guards and other inmates.  But that means 23-hour-a-day isolation for the accused, even before their trials begin.

And such treatment doesn't sit well with Warren or Senate Majority Whip Dick Durbin (D-Ill.), two of the chamber's fiercest critics of solitary confinement.  “Solitary confinement is a form of punishment that is cruel and psychologically damaging,” Warren said in an interview.  “And we’re talking about people who haven’t been convicted of anything yet.”

The Massachusetts Democrat, a member of Senate Majority Leader Chuck Schumer's leadership team, said that while some limited uses of solitary confinement are justified, she’s worried that law enforcement officials are deploying it to “punish” the Jan. 6 defendants or to “break them so that they will cooperate.”

Her sentiments are shared by Durbin, who also chairs the Senate Judiciary Committee and expressed surprise that all of the detained Jan. 6 defendants were being kept in so-called “restrictive housing.”  While their defense of accused rioters' rights as criminal defendants is unlikely to change the Justice Department's handling of those cases, it's a notable case of prominent progressives using their political clout to amplify their criminal justice reform calls even on behalf of Donald Trump supporters who besieged the entire legislative branch in January.

Durbin, who has long sought to eradicate solitary confinement, told POLITICO that such conditions should be a “rare exception," for accused insurrectionists or any other prisoners. “There has to be a clear justification for that, in very limited circumstances,” he said.

D.C. government officials say the pandemic already has sharply limited freedom of movement in the jail where most Jan. 6 defendants are held.  In fact, the entire jail has been subject to strict lockdown procedures since the onset of the pandemic, a determination that has caused broader controversy about prisoners' rights.  But restrictive housing is a maximum-security designation, and the blanket designation for the Capitol defendants — which isn't expected to ease even if pandemic era restrictions do — is a notable decision for a large group of inmates who have yet to be tried for their alleged crimes.

Asked about the Democratic senators’ concerns, a spokesperson for the D.C. Department of Corrections touted the growing number of educational programs and limited amenity access that inmates are now offered.  “We appreciate the concern, patience and support of our neighbors as we work to keep all within DOC safe, as well as support the public safety of all in the District,” said spokesperson Keena Blackmon.

Warren and Durbin's interest in the conditions facing detained Jan. 6 defendants come amid a massive Justice Department push to arrest and prosecute the hundreds of people who breached the Capitol and threatened the peaceful transfer of power to the Biden administration.

Prior related posts:

April 20, 2021 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners | Permalink | Comments (0)

Monday, April 19, 2021

Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled "Pondering the aftermath of a landmark ruling in felon-in-possession cases," and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Garythe court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”...

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.

April 19, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, April 18, 2021

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:

April 18, 2021 in Criminal Sentences Alternatives, Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, April 16, 2021

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Wednesday, April 14, 2021

Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast

A few weeks ago, as blogged here, Politico spotlighted some case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  That lengthy piece highlighted reasons why it could turn out, in the words of the headline, that "Many Capitol rioters [are] unlikely to serve jail time."  Politico now has this additional interesting piece on the same beat headlined "Leniency for defendants in Portland clashes could affect Capitol riot cases."  I also recommend this piece in full, in part because the piece showcases how differing charging policies and practices — both at the national level and in individual districts — can lead to differing case outcomes:

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer.  The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.  Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. “They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder.  Some defendants are accused of punching or jumping on police officers during the street battles.  One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters.  In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence.  Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.  Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob....

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.  “There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases.  Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.  “Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”  Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable. “Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol “I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity.  “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.  Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said....

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.  “Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO.  “I think the government should always look at the facts of the case and the individual charges.  We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own....  Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts.  The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity.  That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread. 

Prior related post:

April 14, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 11, 2021

"Against Criminal Law Localism"

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

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing.  A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies.  But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.”  Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state — their option is only to add more offenses to the existing state code.  Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups.  Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance.  Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

April 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, April 05, 2021

"Doing Away With Disorderly Conduct"

The title of this post is the title of this new article by Rachel Moran recently posted to SSRN.  Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve.

April 5, 2021 in Offense Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Sunday, April 04, 2021

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Thursday, April 01, 2021

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions

The quoted title of this post is the lead headline of this lengthy and detailed Politico discussion of some of the case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  I recommend the piece in full, and here are excerpts:

Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time.  While public and media attention in recent weeks has been focused on high-profile conspiracy cases against right-wing, paramilitary groups like the Oath Keepers and the Proud Boys, the most urgent decisions for prosecutors involve resolving scores of lower-level cases that have clogged D.C.’s federal district court.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day. In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.

There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing.  And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects. “My bet is a lot of these cases will get resolved and probably without prison time or jail time,” said Erica Hashimoto, a former federal public defender who is now a law professor at Georgetown....

The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.  There are also sensitive issues about precedent for the future, given the frequency of politically inspired demonstrations on Capitol Hill that run afoul of the law....

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others. “I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away....

Former federal prosecutor Paul Butler said he hopes that those most troubled by the Capitol riot won’t recoil at the looming deals for many participants. “The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” said Butler, now a law professor at Georgetown. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”

A standard set of four misdemeanor charges prosecutors have been filed in dozens of the Capitol cases carries a maximum possible punishment of three years in prison.  But that sentence or anything close to it is virtually unheard of in misdemeanor cases, lawyers said.  “Nobody goes to jail for a first or second misdemeanor,” Butler said flatly....

In virtually all the non-felony cases, the charges are likely to be grouped together as trespassing under federal sentencing guidelines.  While those guidelines contain a small enhancement for entering a “restricted” building or grounds, defendants with no significant criminal history are looking at the lowest possible range: zero to six months. “Zero” months means no jail at all....

Another factor prosecutors and judges may weigh is that the treatment of misdemeanors by the justice system is currently the subject of intense attention in criminal justice reform circles. Reformers say such minor charges often cause major complications in the lives of the minority defendants who typically face them. “A lot of Black or brown people, they don’t get the benefit of individual judgment or breaks,” said Butler.  “I think this will be a record number of white people who appear in federal criminal court in D.C….If they’re receiving mercy, the prosecutor’s office should make sure that same mercy will be applied to all the other people who they prosecute, who are mainly people of color and low-income people.”

The former prosecutor said he hopes the high-profile Capitol prosecutions call attention to the underlying equity issues and to the fact that the vast majority of federal cases are resolved not through trials but the plea negotiations that are about to begin. “This could be a teachable moment here for the public,” Butler said.

I have highlighted lots of quotes by Prof Butler here because I share he view that these cases present an important "teachable moment," and because I hope persons who support criminal justice reform and who are troubled by modern mass incarceration will not be unduly critical of non-carceral outcomes for lower-level offenders even in this high-profile crime.  In addition to this "mass crime" helping to teach that prison time is not essential for any and every offender, these cases may be able to spotlight how disruptive a prosecution and non-carceral punishment can prove to be for defendants.  I surmise many of the lower-level defendants here have already endured a lot of formal and informal punitive consequences from their indictment, and they will continue to face all sorts of formal and informal consequences after any convictions.  Even defendants who get probation, I would guess, will not be eager to brag that they only suffered a "slap on the wrist" and perhaps some will even be usefully vocal about how much punishment the criminal justice process itself produces even if no jail time is imposed.

March 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, March 29, 2021

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

This local press piece from Boston reports on new local empirical work that is likely to garner a lot of attention around the nation. The press article is titled "Study finds not prosecuting misdemeanors reduces defendants’ subsequent arrests," and it discusses at length the findings in this new Working Paper (also here) titled "Misdemeanor Prosecution" authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is the abstract of the Working Paper:

Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.

And here is part of the discussion from the press piece highlighting why this is research could prove so potent:

A study examining the effect of declining to prosecute lower-level nonviolent offenses — a signature policy adopted by Suffolk District Attorney Rachael Rollins that has drawn both praise and scorn — suggests the approach leads to significantly less future involvement by those defendants in the criminal justice system.

The new study, which looked at cases handled by the Suffolk County DA’s office going back to 2004, found that those defendants not prosecuted for lower-level misdemeanor cases were 58 percent less likely to face a criminal complaint over the following two years than those who faced prosecution for similar charges. 

The analysis, which is the first of its kind to rigorously evaluate a policy being embraced by reform-minded prosecutors across the country, provides striking evidence that steering defendants, particularly first-time offenders, away from prosecution and a criminal record can reduce their chances of cycling back into the legal system.

The findings, being released on Monday by the National Bureau of Economic Research, are likely to bring heightened attention to the question of how best to deal with lower-level offenses, an issue that has become a controversial topic among law enforcement officials and advocates who say prosecution of these cases exacts an enormous toll on poor and minority communities without enhancing public safety....

“We think this is pretty compelling evidence of beneficial effects from not prosecuting,” said Anna Harvey, a professor of politics at New York University, who led the research along with Amanda Agan, an economist at Rutgers University, and Jennifer Doleac, an economist at Texas A & M University.  The higher rates of new criminal complaints among those who did face prosecution for lower-level charges, on the other hand, mean “we may in fact be undermining public safety by criminalizing relatively minor forms of misbehavior,” write Harvey and her colleagues....

Alexandra Natapoff, a professor at Harvard Law School who has extensively studied the prosecution of misdemeanor offenses, said the study “gives empirical teeth to just how costly and counterproductive low-level misdemeanor arrests and court criminal convictions can be.”  Natapoff, author of the 2018 book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, said we have paid far too little attention to the harmful impact on individuals and communities of prosecuting misdemeanors, which account for 80 percent of all criminal cases in the US.  “These cases that we treat as chump change, in fact, are destroying lives, and destroying families, and undermining the economic wellbeing of communities thousands of times over every day,” Natapoff said in a recent video explainer on the reach of misdemeanor convictions.

Miriam Krinsky, executive director of Fair and Just Prosecution, a group formed in 2017 to work with reform-minded DAs, called the study an affirmation of the changing approach to prosecution underway in a number of major cities.  “We are seeing a new normal among elected prosecutors who, like DA Rollins, share a view that we have prosecuted too many individuals who can be better addressed by treatment or support through a public health lens,” she said.  “It’s incredibly significant to see research like this that proves the value of the new thinking and the paradigm shift that’s taking place.”

March 29, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 15, 2021

"Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues Confirmation"

Fentanyl-Analogues-Conference_for-social_v3-1536x858The title of this post is the title of this exciting multi-panel event taking place tomorrow that is being hosted by Ohio State's Drug Enforcement and Policy Center. The full agenda for the event is avalable at this link, and the speakers are profiled at this link, and background materials are assembled here.

Here is a description of the event from the DEPC main event page:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills. In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this invitation-only symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that classwide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths.  Participants will learn about the relationship between classwide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose. P articipants will be presented with an intersectional discussion of the issue that examines classwide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

As this description reveals, this event started as an "invitation-only symposium," but ir is now possible for folks to register for the event at the DEPC main event page.

March 15, 2021 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, March 07, 2021

Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act"

Back in 2019, I was pleased to be able to blog here about a legialative effort to prohibit judicial reliance on "acquitted conduct" in the federal sentencing system.  I am now pleased to now be able to again highlight that Senators Dick Durbin and Chuck Grassley are again the bipartisan sponsors of the latest version of the "Prohibiting Punishment of Acquitted Conduct Act."  This March 4 press release from Senator Durbin's office provides these details:

U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act, [on March 4] introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021.  This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  U.S. Representatives Steve Cohen (D-TN-09) and Kelly Armstrong (R-ND) plan to introduce House companion legislation next week.

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt.  However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.  This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said.  “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

“If any American was acquitted of past charges by a jury of their peers, then some sentencing judge down the line shouldn’t be able to find them guilty anyway and add to their punishment. A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty. The use of acquitted conduct in sentencing punishes people for what they haven’t been convicted of. That’s not acceptable and it’s not American. Back in 2014, Justices Scalia, Thomas and Ginsburg all agreed, but weren’t able to hear the case and stop the practice. Our bill will finally prohibit under federal law what many already find patently unconstitutional,” Grassley said....

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

Bill text is available here.

A few of many, many prior related posts:

March 7, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, March 04, 2021

Lots of SCOTUS talk and debate over the "categorial approach" and ACCA proof burdens in immigration decision

The Supreme Court this morning handed down a 5-3 ruling in Pereida v, Wilkenson, No. 19-438 (S. Ct. Mar. 4, 2021) (available here), in which the majority holds that, under the Immigration and Nationality Act (INA), a person subject to removal seeking discretionary relief must prove a prior conviction is not a "disqualifying criminal offense." Federal sentencing fans may already sense where this is going because so much of federal sentencing law, particularly the Armed Career Criminal Act (ACCA), is concerned a lot about whether a prior conviction qualifies a defendant for certain sentencing enhancements. In his opinion for the majority, Justice Gorsuch talks a good deal about these matters, and here are a few passages that caught my eye:

We have described the modified categorical approach as requiring courts to “review . . . record materials” to determine which of the offenses in a divisible statute the defendant was convicted of committing.  Mathis, 579 U. S., at ___ (slip op., at 16).  We have acknowledged that this process calls on courts to consider “extra-statutory materials” to “discover” the defendant’s crime of conviction.  Descamps v. United States, 570 U.S. 254, 263 (2013).  We have observed that these “materials will not in every case speak plainly,” and that any lingering ambiguity about them can mean the government will fail to carry its burden of proof in a criminal case.  Mathis, 579 U.S., at ___ (slip op., at 18) (citing Shepard v. United States, 544 U.S. 13, 21 (2005)).  And we have remarked that “the fact of a prior conviction” supplies an unusual and “arguable” exception to the Sixth Amendment rule in criminal cases that “any fact that increases the penalty for a crime” must be proved to a jury rather than a judge. Apprendi v. New Jersey, 530 U.S. 466, 489, 490 (2000).

Really, this Court has never doubted that the who, what, when, and where of a conviction — and the very existence of a conviction in the first place — pose questions of fact.  Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so....

In the criminal context, this Court has said that judges seeking to ascertain the defendant’s crime of conviction should refer only to a “limited” set of judicial records.  Shepard, 544 U.S., at 20–23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant’s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding should be as confined as possible. Id., at 25–26; see also Apprendi, 530 U. S., at 487–490 (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)). But Sixth Amendment concerns are not present in the immigration context

Justice Breyer's dissent in this case also speaks on the "categorial approach" and ACCA jurisprudence at some length.   I will leave it to others to let me know if there are particularly important passages in the dissent (or in the majority) that sentencing fans ought to consider at greater length.

March 4, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, March 03, 2021

US Sentencing Commission issues big new report on "Federal Armed Career Criminals: Prevalence, Patterns, and Pathways"

The US Sentencing Commission has just released this big report providing "information on offenders sentenced under the Armed Career Criminal Act, including an overview of the Act and its implementation in the federal sentencing guidelines. The report also presents data on offender and offense characteristics, criminal histories, and recidivism of armed career criminals."  Here are the "Key Findings" appearing in the first part of the report:

Key Findings
• Armed career criminals consistently comprise a small portion of the federal criminal caseload, representing less than one percent of the federal criminal caseload.  During the ten-year study period, the number of armed career criminals decreased by almost half, from 590 in fiscal year 2010 to 312 in fiscal year 2019.
• Armed career criminals receive substantial sentences.  Offenders who were subject to the ACCA’s 15-year mandatory minimum penalty at sentencing received an average sentence of 206 months in fiscal year 2019.  Offenders who were relieved of the mandatory minimum for providing substantial assistance to the government received significantly shorter sentences, an average of 116 months in fiscal year 2019.
• Armed career criminals have extensive criminal histories. Even prior to application of the armed career criminal guideline, 90.4 percent of armed career criminals qualified for the three most serious Criminal History Categories under the guidelines, and almost half (49.4%) qualified for Criminal History Category VI, the most serious category under the guidelines. 
• The overwhelming majority of armed career criminals had prior convictions for violent offenses. In fiscal year 2019, 83.7 percent of armed career criminals had prior convictions for violent offenses, including 57.7 percent who had three or more such convictions.  Despite the predominance of violence in their criminal history, the most common prior conviction for armed career criminals was for public order offenses, with 85.3 percent having at least one such prior conviction.
• More than half (59.0%) of armed career criminals released into the community between 2009 and 2011 were rearrested within an eight-year follow-up period. When armed career criminals recidivated, their median time to rearrest was 16 months and the most serious common new offense was assault (28.2%).
• Recidivism rates of armed career criminals varied depending on whether they had prior convictions for violent offenses and the number of such prior convictions.
      ◦ Nearly two-thirds (62.5%) of armed career criminals with prior violent convictions and no prior drug trafficking convictions, and more than half (55.0%) of armed career criminals with both prior violent and drug trafficking convictions were rearrested within the eight-year follow-up period.  In comparison, only 36.4 percent of armed career criminals with prior drug trafficking convictions and no prior violent convictions were rearrested during the study period, but there were only 12 such offenders.
     ◦ Furthermore, 61.7 percent of armed career criminals with three or more prior violent convictions were rearrested during the eight-year follow-up period compared to 48.9 percent of armed career criminals with one or two prior violent convictions

March 3, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

More guns = more gun crimes in 2020?

The question in the title of this post is prompted by this new NPR article headlined "Did Record Gun Sales Cause A Spike In Gun Crime?  Researchers Say It's Complicated."  Here is an excerpt (with links from original):

"It's a real challenge to try and disentangle the role of any one single potential cause," says Julia Schleimer, with the Violence Prevention Research Program at the University of California, Davis. "It's particularly challenging during the pandemic," with variables such as mass unemployment and closed schools.

Nevertheless, Schleimer and her colleagues are trying to parse out the effect of all those new guns. Their study of the initial boom in purchases — an estimated 2.1 million extra sales from March to May — concluded there was an association between short-term surges in sales and shootings.

But as the year progressed, Schleimer says that statistical relationship faded.  "We know that there's a strong link between more guns and more gun violence," she says, "but during this pandemic and in our analysis here, that link is less clear."  Setting aside the question of sales, though, there does seem to be evidence that guns were more present in daily life last year — especially during crimes.

"All of a sudden, the number of assaults with guns spiked a lot," says Rob Arthur, a data scientist and independent journalist. In a recent article for the Intercept, he pointed to an increase in the ratio of violent crimes that involved guns to those that didn't.  "That suggested to me that there was some kind of substitution going on," Arthur says. "People who were committing assaults had access to guns more in 2020 than they did before. And so they they were essentially getting upgraded to a worse crime, assaulting someone with a gun, whereas before they might have done it without a gun."

It may be a leap, though, to assume those shooters were part of last year's wave of gun buyers. Mandatory background checks bar felons and other disqualified people from buying guns in stores, and past research shows most guns used in crimes are not newly purchased.  But established patterns may not apply to 2020.  Guns were bought by a much broader cross-section of Americans last year, and the firearms industry estimates 40% were first-time buyers.

"Black gun ownership is way up, Asian gun ownership is way up, Hispanic gun ownership is way up," says Cam Edwards, the editor of BearingArms.com. "So we've seen a democratization...  where Americans who never before would have considered exercising that right have now embraced it."

For some, this "democratization" of gun sales is a matter of exercising a civil right. But it's also likely that the broadening of firearm ownership was driven by people who simply decided, during a turbulent year, that they needed a gun.  Whatever the reasons, it means 8 million new guns are now in the possession of people who potentially have less experience handling them.

March 3, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Tuesday, March 02, 2021

En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal "violent crime"

Great scottI generally do not closely follow lower federal court rulings about what state convictions qualify as predicates for sentencing enhancement under the Armed Career Criminal Act ("ACCA") or the career offender sentencing guidelines. I have a hard time just keeping up with the many Supreme Court ACCA cases, and I have previously suggested in this post a few years ago that modern ACCA jurisprudence must reside as some level of hell in Dante's Inferno because this caselaw is so dang inscrutable. 

But a helpful reader alerted me to a new en banc Second Circuit decision today in US v. Scott, No. 18-163-cr (2d Cir. Mar. 2, 2021) (available here), which seems like a useful reminder of how nuts this jurisprudence can be.  Here is how the majority opinion in Scott gets started:

Defendant-appellee Gerald Scott is a violent criminal, who has repeatedly threatened, and on two occasions taken, human life.  The killings were undoubtedly brutal: Scott shot one of his victims in the head at point-blank range; he stabbed the other to death. For these killings, Scott stands twice convicted in New York State of first-degree manslaughter under N.Y. Penal Law § 125.20(1), a homicide crime second only to murder in its severity.   At issue on this appeal is whether Scott’s manslaughter convictions are for violent crimes. An affirmative answer might appear obvious to a man on the street aware of Scott’s conduct.  But the laws relevant here — the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), and the Career Offender Sentencing Guideline, see U.S.S.G. § 4B1.2(a) — do not identify violent crimes by looking to what a defendant actually did. Rather, they look to the minimum he might have done and still been convicted.  This inquiry focuses on a crime’s elements, asking whether they categorically require a defendant’s use of physical force, specifically violent physical force.  See Curtis Johnson v. United States, 559 U.S. 133, 140, 144 (2010) (defining physical force required by ACCA).  Applying that standard here, we conclude that first-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.

The occasion for our ruling is the United States’ appeal from an amended judgment of conviction entered on January 12, 2018, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), which resentenced Scott to time served (then totaling approximately 11 years, 3 months) for attempted Hobbs Act robbery and related firearms crimes. Resentencing followed the district court’s grant of Scott’s 28 U.S.C. § 2255 motion to vacate his original 22-year sentence.  See United States v. Scott, No. 06 CR 988- LTS, 2017 WL 2414796, at *3 (S.D.N.Y. June 2, 2017).  The district court concluded that it had mistakenly relied on ACCA and the Career Offender Guideline in imposing Scott’s initial sentence.  It reasoned that Scott’s two prior convictions for first-degree manslaughter did not qualify as predicate violent crimes because “first degree manslaughter can be committed in New York State by omission and thus without using force.”  Id. at *2 (emphasis added).  A divided panel of this court agreed, with the majority analogizing omission to “complete inaction,” and concluding therefrom that the crime could be committed without the use of force.  See United States v. Scott, 954 F.3d 74, 78 (2d Cir. 2020) (holding first-degree manslaughter “not a predicate crime of violence because it can be committed by complete inaction and therefore without the use of force”).

After rehearing the case en banc, we reject this reasoning, which, carried to its logical — or illogical — conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person’s death by omission when the defendant’s specific intent is to kill, see N.Y. Penal Law § 125.25(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter).  We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.

Disconcertedly, the majority needed 50 more pages to explain why first-degree manslaughter in New York qualifies as a federal "violent crime," and then concurring and dissenting opinions needed 70 more pages to debate a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.  With the rocky jurisprudence of this case and the horrors of so many others, I would love to time warp back to the drafting of ACCA and urge a whole new approach to federal sentencing.  

March 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Sunday, February 28, 2021

Making the case to expand Prez Trump's executive order on overcriminalization

I noted in this post last month that, on January 18, 2021, Prez Trump issued an "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  This EO was intended to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, and this new Law.com commentary authored by Mark Holden and Norman Reimer make the case for expanding its ambit. The piece is headlined "Don't Reverse Trump's Order on Regulatory Overcriminalization, Expand Its Principles to Congress," and here are excerpts:

In the final days of his presidency, President Donald Trump signed an executive order entitled “Protecting Americans From Overcriminalization Through Regulatory Reform.”  While President Joe Biden has reversed a number of Trump’s executive orders, this is one he should keep. It is an important step in ensuring that criminal laws — specifically those buried in the countless thousands of federal criminal regulations — are clear and that prosecutors focus their tremendous power on enforcing those laws against people who actually intended to do something wrong or illegal....

This executive order sets forth three policies: (1) agencies that issue regulations with criminal penalties should be clear about what conduct is subject to criminal penalties and the mens rea standard for those offenses; (2) strict liability offenses are disfavored; and (3) criminal prosecutions of regulatory offenses should focus on people who knew what they were doing was wrong or prohibited, thereby causing or risking substantial public harm.

This executive order applies only to regulatory crimes, a specific subset of criminal laws that arise when Congress delegates authority to administrative agencies to criminalize conduct.  These laws are generally less well known to the public, because they are not enacted by Congress but rather by the dozens of agencies within the federal government. Furthermore, the overall volume of regulatory crimes has never been documented, though there are some estimates that number may be north of 300,000.

It is because these laws are less well known that this order is needed.  All laws, particularly criminal laws, should have clear requirements regardless of whether they are statutes passed by Congress or regulations issued by an agency.  It makes no sense for prosecutors to enforce these laws against people whose actions were not truly harmful and who did not know they were doing something that violated a criminal regulation.

Some critics might argue that this order would make it more difficult to prosecute white collar crimes.  But, making laws more clear, having fewer laws that call for strict liability, and focusing on truly wrongful conduct are laudable.  Indeed, it should be the norm in all contexts.  Moreover, just as most criminal law is disproportionately enforced against certain groups, regulatory enforcement is the same way.  The enforcement burden does not generally fall on Wall Street and C-suite executives, but rather on small businesses and the site managers, engineers and other mid- to low-level workers who work for them.

This executive order is a small, but meaningful, step in requiring the government to clearly lay out the conduct that is criminalized, to focus on persons whose wrongdoing was intentional and harmful, and to not punish people who did not know what they were doing was wrong or criminally prohibited.  In the rush to reverse prior policies, a positive step should be preserved.  Indeed, Congress should apply its principles to all of the statutory criminal law it enacts as well.

Prior related post:

February 28, 2021 in Offense Characteristics | Permalink | Comments (2)

Friday, February 26, 2021

Split Washington Supreme Court rules state’s strict liability felony drug possession law violates due process

The Washington Supreme Court issued an interesting split decision yesterday concerning the state's drug possession law.  Here is how the majority opinion in Washington v. Blake, No. 96873-0 (Wash. Feb. 25, 2021) (available here), gets started and a few key passages:

Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.  This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power?  The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power....

The question before us today is whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize.  Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct.  States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated.  The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.

But the possession statute at issue here does far more than regulate drugs.  It is unique in the nation in criminalizing entirely innocent, unknowing possession.

February 26, 2021 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, February 22, 2021

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

February 22, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, February 11, 2021

Thoughtful accounting of the dynamic world of prosecutorial discretion

Marc Levin has this notable new Law360 commentary headlined "DOJ Charging Memo Rescission Aids Prosecutorial Discretion."  The piece covers a lot more than just the new interim DOJ charging memo (discussed here), and I recommend the entire discussion in full.  Here are excerpts:

[W]hile prosecutors have always declined cases, recently elected prosecutors in urban and even some suburban jurisdictions face backlash for presumptively declining to pursue certain categories of cases, such as low-level drug possession and trespassing on public property.

Of course, exercising discretion on which charges to bring in a particular case is not the same as designating categories of cases in which the default policy will be nonprosecution.  Critics charge that the latter displaces the role of legislative bodies in criminalizing conduct.

However, even policies that presumptively decline prosecution for certain offenses can be consistent with the rule of law, provided they operate within constraints that ensure accountability, individualized review and transparency....

In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of.  Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.

Default nonprosecution policies, even if implicit rather than announced, are routinely applied to such antiquated statutes, but also are required by the dramatic growth of criminal law in recent decades.  As a result, countless obscure crimes are largely unknown and unprosecuted.  Many are regulatory offenses affecting business and recreational activities, such as federal laws criminalizing ketchup that isn't thick enough, bringing too many nickels when traveling overseas or writing a check for less than $1.  Like trespassing on public property or drug possession, these obscure offenses often lack an identifiable victim.

A last-minute executive order by former President Donald Trump rightfully urges that civil, rather than criminal, penalties be pursued for unknowing violations of regulations....

This executive order also encourages prosecutors not to bring charges for such crimes if the prospective defendant did not have a culpable mental state, even though it is not required by the law or regulation.  While laudable, this is not fundamentally different than presumptively declining to prosecute an offense altogether, since it effectively restricts the scope of an offense that, as written, creates strict criminal liability.

If prosecutors indeed have the rightful authority to decline pursuing these categories of obscure offenses, then local district attorneys can presumptively not prosecute drug possession or public trespassing.  The ubiquity of the latter is simply not a meaningful philosophical distinction.

Some would argue another difference is that those who tend to be subject to drug and trespassing laws are much less powerful.  Others would point to the neighborhood quality-oflife concerns as a distinguishing factor, but that goes to the question of whether prosecution or other strategies are most effective, not the legitimacy of prosecutorial declinations.

Prosecutors must decide not just whether laws have been violated, but whether prosecution is in the public interest, taking into account the trade-off in pursuing other cases and whether prosecution would be more likely than other approaches to advance goals such as public safety and public confidence in the justice system.

In military terms, lawmakers give prosecutors ammunition, but prosecutors decide not only when to shoot but which battles should be fought.

A few recent related posts:

February 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, February 09, 2021

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

  1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
  2.  Require that short prison sentences be served in county jails. 
  3.  End mandatory minimum sentences for nonviolent offenses.
  4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
  5.  Provide guidance for judges considering sentence enhancements.
  6.  Limit gang enhancements to the most dangerous offenses.
  7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
  8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
  9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
  10.  Establish judicial process for “second look” resentencing.

February 9, 2021 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 08, 2021

"Restoring the Historical Rule of Lenity as a Canon"

The title of this post is the title of this new article recently posted to SSRN and authored by Shon Hopwood. Here is its abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation.  Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant.  But the rule is not always reliably used, and questions remain about its application.  In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule.  The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes.  As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts.  If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

February 8, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 04, 2021

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Monday, February 01, 2021

CCJ's National Commission on COVID-19 and Criminal Justice releases latest "Impact Report: COVID-19 and Crime"

noted here some months ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped produce a number of important works (examples here and here and here), and I see that it released yesterday this new report formally titled "Pandemic, Social Unrest, and Crime in U.S. Cities: 2020 Year-End Update."  This webpage, titled "Impact Report: COVID-19 and Crime," provides this overview:

This report examines changes in crime rates in 34 American cities during calendar year 2020, with a special emphasis on homicide and other violent crimes.  The current study updates previous studies by the authors with additional data through December 2020.  The study was conducted by criminologist and Professor Emeritus Richard Rosenfeld and Ernesto Lopez of the University of Missouri–St. Louis and Thomas Abt, Commission Director and Council on Criminal Justice Senior Fellow.

Methodology

This study examines monthly crime rates for ten violent, property, and drug offenses in  34 U.S. cities. Not all cities reported monthly data for each crime.  The largest city in the sample is New York, with 8.42 million residents.  The smallest is Norfolk, Virginia, with 245,000 residents.  The crime data were obtained from the online portals of city police departments. The data are subject to revision, and offense classifications varied somewhat across the cities.

Findings

  • Homicides rose sharply in 2020, and rates of aggravated assaults and gun assaults increased as well.  Homicide rates were 30% higher than in 2019, an historic increase representing 1,268 more deaths in the sample of 34 cities than the year before.
  • The magnitude of this increase is deeply troubling, but absolute rates of homicide remain well below historical highs.  In 2020, the homicide rate was 11.4 deaths per 100,000 residents in sample cities; 25 years earlier, in 1995, the rate was 19.4 per 100,000 residents.
  • Aggravated assault and gun assault rates in 2020 were 6% and 8% higher, respectively, than in 2019.  Robbery rates declined by 9%.
  • Domestic violence increased significantly during the early months of the pandemic, but these results should be viewed with caution as year-end rates were comparable to year-end rates in 2019, and findings were based on data from just 12 cities.
  • Property and drug crime rates, with the exception of motor vehicle theft, fell significantly in 2020.  Residential burglary decreased by 24%, nonresidential burglary by 7%, larceny by 16%, and drug offenses by 30%.  Motor vehicle theft rose by 13%.
  • Homicides increased in nearly all of the 34 cities in the sample.  In the authors’ view, urgent action is necessary to address these rapidly rising rates.  Subduing the pandemic, increasing confidence in the police and the justice system, and implementing proven anti-violence strategies will be necessary to achieve a durable peace in the nation’s cities.

Fox News has this lengthy discussion of this report under the full headline "America's murder rate increase in 2020 has 'no modern precedent,' crime analyst group finds: New report analyzes crime rates amid coronavirus pandemic, civil unrest across U.S."  Notably, Salon has a different take on the data in this new piece fully headlined "Did 'defund the police' lead to an increase in murder? Almost certainly not: In fact, hardly any cities have 'defunded' cops—the troubling spike in homicide is probably pandemic-related."

As regular readers know, crime trends are challenging to understand and predict even during calm times, and 2020 was surely the antithesis of calm times.  I am inclined to guess that the multi-factors chaos of 2020 contributed in multiple ways to the big increase in violent crimes and the continued decrease in most property crimes.  (I would hypothesize that drug crimes actually increased in 2020, but detection and arrests decreased.)  I would also guess that we will see some regression to the mean in 2021 no matter what happens with the pandemic and policy efforts.

That all said, I continue to wonder how a nation that has now become somewhat acclimated to thousands of COVID deaths every day will react to reports of a few dozen more homicide deaths each week in 2020.  It might be especially interesting to see surveys of community perspectives on the perceived threats of, and possible responses to, COVID and violent crime in a wide array of American neighborhoods.  Stay safe everyone during these remarkable times.

UPDATE:  Paul Cassell has a detailed examination of the new CCJ report under a full headline that highlights its main themes: "Explaining the Great 2020 Homicide Spike: While a new report released today by the Council on Criminal Justice downplays the role anti-police protests played in last year's unprecedented homicide spike, a decline in pro-active policing following the protests remains the most likely cause."

February 1, 2021 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Sunday, January 31, 2021

"Undemocratic Crimes"

The title of this post is the title of this new article authored by Paul Robinson and Jonathan Wilt. Here is its abstract:

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment.  This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice.  Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common rules in modern criminal law seriously conflict with community justice judgments, including three strikes and other habitual offender statutes, abolition or narrowing of the insanity defense, adult prosecution of juveniles, felony murder, strict liability offenses, and a variety of other common doctrines.

In short, democratically elected legislatures have regularly chosen to adopt criminal law rules that conflict with the deep and abiding intuitions of their constituents.  We endeavor to explain how this incongruent situation has arisen.  Using the legislative and political histories of the doctrines noted above, we document four common causes: legislative mistake about the community’s justice judgments, interest group pressure, prioritizing coercive crime-control mechanisms of general deterrence and incapacitation of the dangerous over doing justice, usually at the urging of academics or other supposed experts, and legislative preference for delegating some criminalization decisions to other system actors, such as prosecutors and judges.

Analysis of these reasons and their dynamics suggests specific reforms, including a legislative commitment to reliably determine community justice judgments before enactment and to publicly explain the reasons for enacting any criminal law rule that conflicts.  Creation of a standing criminal law reform commission would be useful to oversee the social science research and to help hold the legislature to these public promises.

January 31, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, January 27, 2021

"Prosecuting Misdemeanors"

The title of this post is the title of this book chapter authored by Jenny Roberts now available via SSRN.  Here is its abstract:

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year.  This chapter discusses the role of prosecutors in the misdemeanor system.  First, it addresses prosecutorial discretion and mass misdemeanor criminalization.  Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases.  Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes.  This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors.  Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record.

Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion.  Some recently elected so-called progressive prosecutors have already implemented significant promised changes.  Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

January 27, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 19, 2021

Intriguing (and significant?) executive order from Prez Trump on "Protecting Americans From Overcriminalization Through Regulatory Reform"

I just saw this new federal Executive Order which was issued yesterday, January 18, 2021, by Prez Trump titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  Here are the main operational sections of the order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve transparency with respect to the consequences of violating certain regulations and to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, it is hereby ordered as follows:

Section 1. Purpose. In the interest of fairness, Federal criminal law should be clearly written so that all Americans can understand what is prohibited and act accordingly. Some statutes have authorized executive branch agencies to promulgate thousands of regulations, creating a thicket of requirements that can be difficult to navigate, and many of these regulations are enforceable through criminal processes and penalties. The purpose of this order is to alleviate regulatory burdens on Americans by ensuring that they have notice of potential criminal liability for violations of regulations and by focusing criminal enforcement of regulatory offenses on the most culpable individuals.

Sec. 2. Policy. It is the policy of the Federal Government that:

(a) Agencies promulgating regulations that may subject a violator to criminal penalties should be explicit about what conduct is subject to criminal penalties and the mens rea standard applicable to those offenses;

(b) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where appropriate, agencies should consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement of such offenses; and

(c) Criminal prosecution based on regulatory offenses is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm. Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited....

Sec. 5. Agency Referrals for Potential Criminal Enforcement. (a) Within 45 days of the date of this order, and in consultation with the Department of Justice, each agency should publish guidance in the Federal Register describing its plan to administratively address regulatory offenses subject to potential criminal liability rather than refer those offenses to the Department of Justice for criminal enforcement.

As regular readers likely know, lots of folks have long been concerned about federal "overcriminalization."  For many years across multiple administrations, public policy groups on both the left and the right have advocated for mens rea reforms and other tools to limit undue criminal liability for regulatory offenses.  Against that backdrop, I find it especially intriguing and ultimately puzzling that Prez Trump's last Executive Order during his last week in office would seek to address these issues.  Because I am not an expert in this space, I am not sure if this is a significant EO, but I am eager to hear from anyone who thinks it might be.

UPDATE: I now see that the Heritage Foundation has this new short commentary on this Executive Order under the headline "Trump Delivers Long-Awaited Triumph for Criminal Justice Reform in Last-Minute Executive Order."  Here is a snippet from the commentary with lots of links:

The executive order is designed to “protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations.”  

It recognizes what scholars from both sides of the political aisle have observed for decades: that federal criminal law is far-reaching, unintuitive, and difficult to understand. The National Association of Criminal Defense Lawyers, the American Civil Liberties UnionThe Charles Koch FoundationThe Heritage FoundationThe American Conservative Union, and many other groups have been advocating that the government clear up this tangled web of criminal laws because, as the executive order acknowledges, most Americans cannot reasonably understand what the law demands of them. And even accidental violations of arcane regulations can land them in prison.  

This isn’t hypothetical. The National Association of Criminal Defense Lawyers keeps a database of Americans who have been criminally punished for violating obscure regulatory laws.  

January 19, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (3)

Friday, January 15, 2021

Feds complete yet another late-night execution of convicted killer of seven from Virginia

As reported in this CNN piece, headlined "Federal government executes Corey Johnson following prolonged legal fight," the latest federal execution followed, yet again, what has become the standard litigation script with the Supreme Court ultimately rejecting all final arguments for a delay.  Here are some of the details: 

Corey Johnson was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, and was pronounced dead at 11:34 p.m. ET on Thursday.

Johnson was sentenced to die after he was convicted of killing seven people in 1992 as a part of the drug trade in Virginia.  The weeks preceding his execution were defined by a tense legal battle after he contracted Covid-19 while on death row.

In his final statement, Johnson apologized for his crimes and told the families of the victims that he hoped they would find peace. He also thanked the staff at the prison, the prison's chaplain, his minister and his legal team....

The Supreme Court denied a last-ditch effort late Thursday by Johnson's legal team that leaned on claims of an intellectual disability and his Covid-19 diagnosis, arguing that his infection paired with a lethal injection would amount to a cruel and unusual punishment.  That appeal came after an appellate court on Wednesday tossed out a lower court's decision to stay the executions of Johnson and another death row inmate who contracted the virus, Dustin Higgs, whose execution is scheduled to take place Friday....

Johnson was found guilty of seven counts of capital murder in 1993, with the US District Court for the Eastern District of Virginia jury unanimously recommending seven death sentences.

Thursday's execution, six days before President-elect Joe Biden takes office, coincides with a new push from more than three dozen members of Congress for Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice plan, 40 members of Congress want to make sure the practice ends on his first day in office.

January 15, 2021 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Tuesday, January 12, 2021

Split Third Circuit panel declares that planned safe injection site would be in violation of federal law

As noted in this post from 15 months ago, a federal district judge ruled a Philadelphia nonprofit group's plan to open a sef injection site would not violate the Controlled Substances Act. But, as reported in this local press piece, headlined "A federal court rejected the plan for a supervised injection site in Philly," a Third Circuit panel has now reversed this ruling. Here is the start of the majority opinion in US v. Safehouse, No. 20-1422 (3d Cir. Jan. 12, 2021) (available here):

Though the opioid crisis may call for innovative solutions, local innovations may not break federal law.  Drug users die every day of overdoses.  So Safehouse, a nonprofit, wants to open America’s first safe-injection site in Philadelphia.  It favors a public-health response to drug addiction, with medical staff trained to observe drug use, counteract overdoses, and offer treatment.  Its motives are admirable. But Congress has made it a crime to open a property to others to use drugs.  21 U.S.C. §856.  And that is what Safehouse will do.

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safeinjection site will break the law.  Although Congress passed §856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference.  And even though this drug use will happen locally and Safehouse will welcome visitors for free, its safe-injection site falls within Congress’s power to ban interstate commerce in drugs.

Safehouse admirably seeks to save lives.  And many Americans think that federal drug laws should move away from law enforcement toward harm reduction.  But courts are not arbiters of policy. We must apply the laws as written.  If the laws are unwise, Safehouse and its supporters can lobby Congress to 11 carve out an exception.  Because we cannot do that, we will reverse and remand.

The dissenting opinion authored by Judge Roth starts this way:

The Majority’s decision is sui generis: It concludes that 8 U.S.C. § 856(a)(2) — unlike § 856(a)(1) or any other federal criminal statute — criminalizes otherwise innocent conduct, based solely on the “purpose” of a third party who is neither named nor described in the statute.  The text of section 856(a)(2) cannot support this novel construction.  Moreover, even if Safehouse’s “purpose” were the relevant standard, Safehouse does not have the requisite purpose.  For these reasons, I respectfully dissent.

It will be interesting to see if Safehouse seeks en banc review and/or certiorari.  It will also be interesting to see if the Justice Department under the Biden Administration might have a different view on safe injections sites than the Trump Administration.

January 12, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (3)

Friday, January 08, 2021

"Thirteen Charged in Federal Court Following Riot at the United States Capitol; Approximately 40 charged in Superior Court"

The title of this post is the heading of this new DOJ press release.  Here are excerpts:

Thirteen individuals have been charged so far in federal court in the District of Columbia related to crimes committed at the U.S. Capitol in Washington, D.C, on Wednesday, Jan. 6, 2021. In addition to those who have been charged, additional complaints have been submitted and investigations are ongoing.

“The lawless destruction of the U.S. Capitol building was an attack against one of our Nation’s greatest institutions,” said Acting U.S. Attorney Michael Sherwin. “My Office, along with our law enforcement partners at all levels, have been expeditiously working and leveraging every resource to identify, arrest, and begin prosecuting these individuals who took part in the brazen criminal acts at the U.S. Capitol. We are resolute in our commitment to holding accountable anyone responsible for these disgraceful criminal acts, and to anyone who might be considering engaging in or inciting violence in the coming weeks – know this: you will be prosecuted to the fullest extent of the law.”

“ATF is committed to the rule of law and the protection of all citizens’ Constitutional rights,” said Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Deputy Director Regina Lombardo. “We continue to support our law enforcement partners to ensure those who violated the law during the events at the Capitol this week are brought to justice. ATF has dedicated all appropriate resources to complete these investigations as soon as possible.”

“Today’s charges are just the beginning of the FBI’s ongoing efforts to hold those responsible for the criminal acts of violence and destruction that unfolded during the U.S. Capitol building breach on January 6th,” said FBI Director Christopher Wray. “To be clear, what took place that day was not First Amendment-protected activity, but rather an affront on our democracy. The FBI, along with our local, state and federal partners, is committed to ensuring that justice is served. We will continue to aggressively investigate each and every individual who chose to ignore the law and instead incite violence, destroy property, and injure others."...

In addition, approximately 40 individuals have been arrested and charged in Superior Court with offenses including, but not limited to, unlawful entry, curfew violations, and firearms-related crimes.

I have left out the lengthy details of all the charges for the 13 defendants listed in the release, but there is a bit of diversity as to the charges facing some of the particular defendants.  And the press release also includes links to the criminal complaints and statements of facts for these 13 defendants.  The main charge is often "knowingly entering or remaining in any restricted building or grounds without lawful authority" under 18 U.S.C. § 1752, and that seems to carry a max sentence of one year imprisonment, though that max goes up to 10 years if the offender had a weapon or "the offense results in significant bodily injury."

January 8, 2021 in Offense Characteristics | Permalink | Comments (1)

Wednesday, December 23, 2020

"Versari Crimes"

The title of this post is the title of this new article authored by Stephen Garvey available via SSRN. Here is the abstract:

The versari doctrine alleges that if a person commits a crime, he or she is strictly liable for all the resulting consequences.  This doctrine, which goes back to canon law, doesn't get much attention these days from criminal law theorists.  But it probably should.  A fair case can be made that the doctrine underwrites the felony murder rule, the misdemeanor manslaughter rule, the legal wrong doctrine, constructive malice, the natural and probable consequences doctrine, and the Pinkerton doctrine.  Those doctrines don't have many friends in the academy today, although they endure in positive law despite all the academic criticism.  Because they endure, criminal-law theorists should perhaps pay more attention to the versari doctrine.  Perhaps they should try to understand what the doctrine says and why it seems to have some intuitive appeal to some people, despite not having much intuitive appeal to those inside the academy.  The paper, written for a conference ASU sponsored on mens rea and criminal justice reform, is an effort to better understand the versari doctrine

December 23, 2020 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Saturday, December 19, 2020

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Friday, December 18, 2020

"How States Transformed Criminal Justice in 2020, and How They Fell Short"

The title of this post is the title of this big retrospective put together masterfully by Daniel Nichanian at The Appeal: Political Report.  I highly recommend review of the whole piece, so that you can fully understand its subhealine: "This year of crises, revisited. Nearly 90 state-level bills and initiatives. 17 themes. 7 maps." And here is the lengthy piece's preamble to the issue-by-issue review of reforms:

Throughout 2020’s unprecedented challenges, criminal justice reform advocates called for sweeping changes.  But state officials and legislatures largely ducked the COVID-19 pandemic that is raging inside prisons and jails, and the protests against police brutality and racial justice that followed Breonna Taylor and George Floyd’s murders.  With some exceptions, they forgoed the sort of reforms that would have significantly emptied prisons amid the public health crisis or confronted police brutality and racial injustice in law enforcement.

Still, on other issues there was headway, and states — whose laws and policies control a lot about incarceration and criminal legal systems—set new milestones: They decriminalized drug possession, expanded and automated expungement availability, repealed life without parole for minors and the death penalty, and ended prison gerrymandering, among other measures.

Throughout the year, The Appeal: Political Report tracked bills, initiatives, and reforms relevant to mass incarceration.  Just as in 2019, here’s a review of major changes states adopted in 2020.

Jump to the sections on: the death penaltydrug policyearly release and paroleyouth justicepolicingfines and feespretrial detentiontrials and sentencingvoting rightsexpungement and re-entryprison gerrymandering — and then there’s more.

December 18, 2020 in Elections and sentencing issues in political debates, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Bipartisan drug sentencing reform in Ohio thwarted by opposition from prosecutors (and former prosecutors)

As well reported in this local article, headlined "Ohio lawmakers pass one criminal justice measure, but a second, broader bill appears to be dead," a long-running effort to reform drug sentencing in Ohio failed to get completely to the finish line in the state General Assembly.  Here are the details:

The Ohio Senate passed a bill Thursday evening that urges more drug treatment and makes it easier for people to have their criminal records sealed.

But a broader criminal justice reform measure that reclassifies many smaller-level drug possession felonies to misdemeanors and requires addicts get treatment looks like it will die in these final days of the 133rd Ohio General Assembly....

“Barring a miracle, I believe it’s dead,” said the Buckeye Institute’s Greg Lawson. “Everything I’ve heard is it’s not coming to the floor.”

A large coalition that includes dozens of organizations across the ideological spectrum — from the conservative Buckeye Institute and the Ohio chapter of Americans for Prosperity to the progressive American Civil Liberties Union of Ohio and Faith in Public Life — was pushing for both bills to pass. Advocates are disappointed that SB 3 appears to have failed....

SB 3 had powerful detractors in prosecutors and judges — including Ohio Chief Justice Maureen O’Connor — who felt the bill would strip judges of discretion, would neutralize the tools that drug courts can use to nudge people through rehabilitation, and would remove an incentive to overcome addiction if there was no threat of a felony conviction.

Gov. Mike DeWine, a former Ohio attorney general and county prosecutor, has said he opposed the bill.

What that ignores, argued Micah Derry, AFP Ohio director, is that felonies follow people for the rest of their lives, even when someone does recover from addiction.  These days, with the power of data mining on the Internet, sealing a record may not shut the books on one’s past.  Many companies that specialize in employment background checks can still find past crimes, thanks to capturing and saving data over time.  “There’s not a single county prosecutor who is a person of color,” Derry said. “Not to get too racial about it, but there’s a reason why people of color have the books thrown at them more than other people.”

Earlier on Thursday, Harm Reduction Ohio, the largest distributor of naloxone in the state, reported drug overdose deaths were high in 2020, with many counties reporting records for the year — especially in Central Ohio and the Appalachian part of the state.  Final data for the year isn’t expected until mid-2021 from the Ohio Department of Health.

The crux of SB 3, mandatory treatment for addicts and reclassification of many felonies to misdemeanors, will unlikely be resurrected next year, said ACLU of Ohio’s Chief Lobbyist Gary Daniels. DeWine will still be in office.  So will Ohio House Speaker Bob Cupp, a former Ohio Supreme Court justice who hasn’t brought it to a floor vote.

Especially because I know many folks who have worked so very hard for years to advance SB3, it is really disappointing that House Speaker Cupp (a former local prosecutor) would not allow a floor vote even after the bll earned committee approval.  I sense that SB3 would have passed in the Ohio House if given a floor vote, and I suspect Gov DeWine (a former local prosecutor) might have ultimately been convinced to sign the bill or allow it to become law.  Especially because House Speaker Cupp perviously served on the Ohio Supreme Court, I wonder if the consistent SB3 opposition of Chief Justice O'Conner (a former local prosecutor) contributed to his unwillingness to even allow this bill to get a vote.

Among other stories, this sad legislative tale serves as yet another reminder of how hard it will be to even slightly revamp the war on drugs no matter how clear its failures are (as well documented by Harm Reduction Ohio).  SB3 did not decriminalize anything (and I believe it increased sentences for hgh-level trafficking); the bill simply sought to reclassify the lowest level drug-possession offenses from felonies to misdemeanors.  But after two years of very hard work by effective advocates on both sides of the aisle, prosecutors and former prosecutors were able to keep this modest reform from even getting a full and fair vote in the Ohio General Assembly.  Sigh.

December 18, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, December 12, 2020

"Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing"

The title of this post is the title of this recent article published in the latest issue of Criminology authored by Marisa Omori and Nick Petersen.  Here is its abstract:

A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors.  After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami‐Dade County, we estimate nonlinear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention.

Results suggest that inequality is greatest between White non‐Latinos and Black Latinos, followed by White non‐Latinos and Black non‐Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7–13 points difference in conviction, 5–6 points in prison, and 4–10 points difference in jail.  We find few differences between White non‐Latinos and White Latinos.  Between half and three‐quarters of the inequality in pretrial detention, conviction, and prison sentences between White non‐Latino and Black people is explained through legal case factors.  Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.

December 12, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Thursday, December 10, 2020

US completes execution of Brendan Bernard despite high-profile appeals for relief

As reported in this AP piece, the "Trump administration on Thursday carried out its ninth federal execution of the year and the first during a presidential lame-duck period in 130 years, putting to death a Texas street-gang member for his role in the slayings of a religious couple from Iowa more than two decades ago."  Here is more:

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration.

The case of Brendan Bernard, who received a lethal injection of phenobarbital inside a death chamber at a U.S. prison in Terre Haute, Indiana, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas. Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons....

[J]ust before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution. The legal team expanded to include two very high-profile attorneys: Alan Dershowitz, the retired Harvard law professor who was part of Donald Trump’s impeachment defense team and whose clients have included O.J. Simpson, Claus von Bulow and Mike Tyson; and Ken Starr, who also defended Trump during the impeachment and is most famous as an independent counsel who led the investigation into Bill Clinton.

But about two and a half hours after the execution was scheduled, the Supreme Court denied the request, clearing the way for the execution to proceed.

The Supreme Court's denial of Benard's application for a stay of execution and cert petition is available at this link. The vote was 6-3, with Justice Sotomayor writing the only full dissent. That dissent starts this way:

Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.  Bernard has never had the opportunity to test the merits of those claims in court.  Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death.

December 10, 2020 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

SCOTUS unanimously rejects narrowed interpretation of UCMJ statute of limitation for rape

The Supreme Court this morning handed down a unanimous opinion opinion in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), concerning the applicable statute of limitations in military rape prosecutions.  Here is how Justice Alito's opinion for the Court gets started:

We must decide in these cases whether, under the Uniform Code of Military Justice (UCMJ), a prosecution for a rape committed during the period from 1986 to 2006 had to be commenced within five years of the commission of the charged offense or whether such a prosecution could be brought at any time, as is the rule at present.  The Court of Appeals for the Armed Forces (CAAF), reversing its prior decisions on this question, held that the statute of limitations was five years and that it therefore barred the rape convictions of respondents, three military service members.  See 78 M. J. 289 (2019); 78 M. J. 415 (2019); 79 M. J. 199 (2019).  We granted certiorari, 589 U. S. ___ (2019), and now reverse.

The opinion that follows goes on to discuss Eighth Amendment jurisprudence in the course of conclude that this jurisprudence should not impact interpretation of the statute of limitation at issue here. Here are some key passages:

In short, if we accepted the interpretation of Article 43(a) adopted by the CAAF and defended by respondents, we would have to conclude that this provision set out a statute of limitations that no one could have understood with any real confidence until important and novel legal questions [regarding the Eighth Amendment] were resolved by this Court. That is not the sort of limitations provision that Congress is likely to have chosen....

Viewing Article 43(a) in context, we are convinced that “punishable by death” is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely.

December 10, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, December 07, 2020

"Police Prosecutions and Punitive Instincts"

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

This Article makes two contributions to the fields of policing and criminal legal scholarship.  First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality.  It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic.  It shows that police prosecutions legitimate the criminal legal system while at the same time replaying the racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery.

The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers.  The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists.

Second, the Article argues that police prosecutions hamper large-scale changes to policing.  By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color.  In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis.

December 7, 2020 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, December 05, 2020

"Banishing ‘Sex Offenders': How Meaningless Language Makes Bad Law"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith.  Here is its abstract:

An essay on how the term "sex offender" is functionally meaningless, and invites policy responses that are out of step with the reality of sexual harm.  These policy responses, in turn, hobble our efforts to reckon with sexual harm, foreclose accountability and redemption, and elide more effective approaches.

December 5, 2020 in Criminal Sentences Alternatives, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Monday, November 30, 2020

Two criminal cases up for SCOTUS oral argument this week

A day before the calendar makes it official, the Supreme Court starts its December argument sitting this morning. Two cases being heard this week are interesting criminal matters, and here are the basics thanks to SCOTUSblog:

Van Buren v. United States (Nov. 30): Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Case preview: Justices to consider breadth of federal computer fraud statute (Ronald Mann)

 

Edwards v. Vannoy (Dec. 2): Whether the Supreme Court’s decision in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.

November 30, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, November 18, 2020

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

November 18, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 03, 2020

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, October 30, 2020

Will problematic definition of "violence" convictions impact Oklahoma sentencing reform initiative SQ 805?

I have highlighted in a few prior posts SQ 805, a fascinating Oklahoma ballot initiative seeking to block non-violent prior convictions from enhancing statutory punishment ranges.  This new Mother Jones story provide useful context concerning Oklahoma reforms while also noting a potential problem with how SQ 805 is drafted.  The full headline of the piece serves to summarize its coverage: "How a Domestic Violence Loophole Could Doom a Campaign to Cut Oklahoma’s Harsh Prison Sentences: A wrinkle threatens public support for the state’s progress against mass incarceration."  I recommend the piece in full, and here are excerpts:

For the last four years, the fight against mass incarceration in Oklahoma has been a story of unlikely success.  In 2016, after decades of creeping prison populations, the state’s incarceration rate reached levels so astronomical that the Prison Policy Initiative would dub it the “world’s prison capital“: More than 1 in 100 Oklahomans was locked up in a prison, jail, juvenile hall, or immigration detention facility.  But that year, the same electorate that voted to send Donald Trump to the White House by a 36-point margin also approved a ballot measure softening their state’s notoriously hardline criminal code.

That measure, State Question 780, was a turning point.  It downgraded drug possession and a slate of minor property crimes from felonies to misdemeanors, while a second measure ensured the money saved by downsizing prisons would go to rehabilitative programs.  In 2017, 14,000 fewer felony charges were filed by Oklahoma prosecutors; not long after, the state’s prison population began to fall. Meanwhile, politicians took note of the message the voters had sent.  In 2018, the state legislature, where Republicans hold a supermajority, passed more reforms, including streamlining the parole process.  Republican businessman Kevin Stitt made reducing the prison population part of his pitch for the governor’s seat, and won.

This year, Oklahoma voters could send another jolt to the system by voting for State Question 805 — another adjustment to the state’s harsh sentencing practices.  If it passes, SQ 805 could reduce the prison population by 8.5 percent over the next 10 years, according to a projection by the Oklahoma Council of Public Affairs, a conservative think tank that supports the initiative.

SQ 805 would add a provision to the state constitution prohibiting prosecutors and courts from jacking up the sentences of people convicted of nonviolent felonies if they have an earlier nonviolent felony on their record....

But there’s a significant wrinkle threatening public support for SQ 805, and in turn, Oklahoma’s slow but steady progress against mass incarceration: The measure distinguishes violent from nonviolent felonies using an outdated list from Oklahoma’s legal code.  As of January, that list of “violent” crimes did not include certain domestic violence charges, such as domestic abuse by strangulation, or domestic assault with a dangerous or deadly weapon. If SQ 805 passes, it would continue to allow courts to impose enhanced sentences for any crimes on that list as of January 1, 2020 — including assault and battery, murder, rape, child abuse, and so on — but not those domestic violence charges.  (Oklahoma lawmakers added some domestic violence charges to the violent felonies list in May, too late for SQ 805’s cutoff date.)

Prior related posts:

October 30, 2020 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

"How Criminal Law Lost Its Mind"

The title of this post is the great title of this new Boston Review commentary by Michael Serota focused on the need for mens rea refrom.  Here is an excerpt:

In our era of mass incarceration, most would say that we need fewer criminal convictions and less punishment.  But exactly what conduct are we prepared to decriminalize, and which sentences are we ready to shorten?  These are hard questions in part because low-level, non-violent offenders account for only a small percentage of the total number of incarcerated people; the vast majority of people in prison are there for serious offenses, including homicide, assault, and drug trafficking.  But it’s also true that our most serious offenses are being applied in overly broad ways that conflict with our moral intuitions about guilt.  To commit a crime, after all, is not just to do a bad thing.  Conduct becomes criminal only when it is accompanied by a blameworthy state of mind. Or at least that’s the idea behind the legal principle of mens rea (Latin for “guilty mind”).

All too often, this principle is ignored by our criminal justice system — both in who it convicts of crimes and in the length of sentences it hands out.  That should change. Good intentions may not be enough to shield someone who stumbles into harm’s way from civil liability, but they should keep individuals outside the reach of the criminal justice system. And even for those who act with a guilty mind, the criminal justice system should recognize important moral gradations between culpable mental states.  Reforming our criminal codes in these ways won’t rid our system of all its problems, but doing so is an important part of a just vision for change.

October 28, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Saturday, October 24, 2020

"What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life"

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

October 24, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Tuesday, October 13, 2020

Noticing a lurking Eighth Amendment issue in SCOTUS arguments over statute of limitations for military rape prosecutions

The US Supreme Court issued another order list this morning with little of interest for sentencing fans, and I am not expecting much criminal law discussion in the on-going confirmation hearings for Judge Amy Coney Barrett.  But SCOTUS is hearing oral argument today in US v. Briggs, which is worth watching for reasons Evan Lee explains in this post at SCOTUSblog under the title "Case preview: Determining the statute of limitations for military rape — and possibly a lot more."  Here is an excerpt:

When the Supreme Court entertains argument on Tuesday in United States v. Briggswhich had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations.  And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel.  Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions.  The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations.  The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes.  That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted.  The U.S. Court of Appeals for the Armed Forces agreed with the defendants....

A key issue in this litigation is which subsection of the UCMJ, 10 U.S.C. Section 843, applies: subsection (a), which states that “any [military] offense punishable by death may be tried and punished at any time without limitation,” or subsection (b), which creates a five-year statute of limitations for other military offenses.  The government argues that Section 843(a) applies because military rape is made “punishable by death” by 10 U.S.C. Section 920(a), which states, “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”  The three defendants argue that military rape is not “punishable by death” because the Supreme Court’s Eighth Amendment precedents prohibit capital punishment for non-fatality rapes.  And if military rape is not punishable by death, then the applicable limitations period is the default provision of Section 843(b)....

At oral argument, it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.  

I strongly agree it will be interesting to see how the Justices may bring up the Eighth Amendment during oral argument today, and I will plan to update this post accordingly.

UPDATE: The oral argument transcript in Briggs is now available here.  A quick search reveals the term "Eighth Amendment" coming up 32 times over the transcript's 65 pages.  Over at Crime & Consequences, Kent Scheidegger has this extended post on the case under the title "The Eighth Amendment and Statutes of Limitations." Here is how this post starts and ends:

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system....

I won’t venture a prediction based on this argument. If the eight justices divide four-four, we might be seeing a reargument.

October 13, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 08, 2020

"Decarceration and Default Mental States"

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

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation.  I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform.  Therefore, I suggest an alternative frame through which to view mens rea reform efforts — a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer.  To reform opponents, the criminal system might be flawed (see, e.g., the War on Drugs, racial disparities, police violence, etc.), but that doesn’t mean it is illegitimate or without important uses.  The brutalities of the system’s treatment of marginalized people don’t indicate an irredeemable system; rather, prosecutors could right the balance by shifting their attention to the wealthy and “white collar” offenders, and lawmakers and judges could grease the wheels of these prosecutions by reducing the burden on prosecutors to prove mens rea elements.  Arguments from opponents and proponents offer little to commentators who see the problems with the criminal system as deeper or more intractable — problems of structure, rather than scope.

Ultimately, therefore, I offer a different frame for mens rea reform and for understanding the stakes of the debate that might resonate with more radical critics.  I suggest that mens rea reform can be analogized to the rule of lenity and the libertarian or anti-statist aspects of the Bill of Rights — these rules are not solely focused on sorting the guilty and the innocent; rather, I suggest, they can be viewed as “anti-criminalization” rules, directives to put a thumb on the scale in favor of defendants and against the state, state violence, and criminal punishment.  Framed in this way, I argue that mens rea reform should be appealing to commentators concerned about mass incarceration, state violence, and the sweeping reach of criminal law and its enforcement.  Perhaps more provocatively, I also argue that mens rea reform could be understood as consistent with more radical calls for abolition or dismantling of the carceral state.

October 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)