Thursday, September 10, 2020

Federal prison population now down to 155,483 according to BOP reporting

Regular readers likely realize that I am no longer providing weekly updates on COVID-era changes in the federal prison population because declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers has slowed considerably.  But I am continuing to notice that the BOP population is still declining and this story seems worth watching closely amidst  continuing efforts to return to some form of new normal.

As I have noted before via this post, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  But by the tail end of July, as noted here, weekly reported population declines were trending under 500.

My post on July 30 noted that the federal population was at a another new historic low with the new BOP reported "Total Federal Inmates" at 157,862.  Three weeks later, on August 20, I reported here that we were down to 156,415.  Today, three more weeks on, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,483

As I have said repeatedly before, I still suspect that COVID-delayed sentencings and stalled federal prison transfers continued to account for mot of these declines; but the lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent.  I am hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now well over six months into the pandemic, the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. Grrr.

A few of many prior related posts:

September 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Punishment, Rewards and the (Relative) Importance of Desert"

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

Philosophers and legal theorists have long been interested in the idea of desert.  In this work I intend to demonstrate that the importance of desert is, at times, overrated, leading thinkers to adopt rather extreme positions.  I believe that the concept of desert is important in some cases, but desert is by no means central to our thinking of punishment and reward, nor should it be.  Even though the concept of desert is generally addressed in matters regarding retribution, I will argue that this concept should not be the basis upon which we build our constructs of punishment and reward.  Rather, we should consider the impact that luck has on our lives.  If we do so, those considerations would change our perception of the concept of desert.

September 10, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, September 9, 2020

Lots and lots of government lawyers on Prez Trump's latest SCOTUS (not-so-)short list

As reported via this release from the White House, this afternoon Prez Trump announced the 20 additions to "his Supreme Court List."  There are a number of perhaps predictable names (e.g., Gregory Katsas) and perhaps surprising names (e.g., Daniel Cameron) on the list, but what I noticed was how many were current or former government lawyers.  Though not too many on the list were actually former criminal prosecutors, all but a few worked for departments of justice and/or in attorney general offices.  I do not believe any of the persons on the list ever served in a public criminal defense role (although some may have provided private or pro bono defense while with a law firm).

This lengthy Politico article discusses the and some of the politics surrounding it.  Here are a few excerpts:

President Donald Trump on Wednesday added 20 names to his existing list of 25 potential picks to fill a future Supreme Court vacancy, including Republican Sens. Ted Cruz, Tom Cotton and Josh Hawley. By doing so, Trump reprised a strategy that many credit with bringing skeptical social conservatives into the fold in 2016 and paving the way for his upset victory over Hillary Clinton.

Calling the appointment of Supreme Court justices “the most important decision a president can make,” the president cast the decision to release his potential picks up front as an obligation White House hopefuls have to their voters, though he was the first candidate to do so, in 2016....

Trump’s decision to nearly double his existing pool of choices could upset those who favored slashing the original list by as much as half, arguing for a more stringent vetting process, as well as the removal of those with limited records from which to judge the consistency of their judicial philosophy. Those in favor of expanding the list argued that Gorsuch departed from such consistency in his ruling this summer. “The whole purpose of the list is to give hard-line conservatives a guarantee that we will not be betrayed again,” one Republican close to the White House told POLITICO in July....

The president’s campaign blasted out appreciative messages from members of Trump’s gun owners and Catholics advisory boards, as well as the campaign’s legal advisers. Democrats and progressive groups, meanwhile, held up Trump’s new list as their own measure of the stakes in the coming election....

Yet, many Republicans noted — and some left-leaning activists lamented — that the issue of the high court and judicial nominees generally was essentially ignored at the Democratic National Convention last month.

Thus far, Biden has declined to follow in Trump’s footsteps and release his own list of potential Supreme Court nominees. He has promised to appoint a Black woman to the court and has said his campaign is compiling a shortlist of such picks “who are qualified and have the experience to be on the court,” but would not release their names “until we go further down the line in vetting them.”

Trump slammed that decision on Wednesday, calling on Biden to release a list of potential Supreme Court picks and musing that Biden’s refusal to do so was “perhaps because he knows the names are so extremely far left that they could never withstand public scrutiny or receive acceptance.” Biden, Trump said, “must release a list of justices for people to properly make a decision as to how they will vote.”

As detailed in post linked below, I have been suggesting for quite some time that Joe Biden should be able to produce a SCOTUS list which could excite progressives and highlight that there diversity of impressive legal talent in our nation which includes persons who have worked on behalf of criminal defendants. 

Prior related post:

September 9, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (2)

Ugly details from federal defenders' latest fact sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders has just released this new two-page fact sheet dense with information and links on "The COVID-19 Crisis in Federal Detention."  I recommend the full document, and here are some of the details (absent the links):

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 4 times the general population, and causing deaths at nearly twice the national rate. BOP is “making it worse,” said Joe Rojas, the regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.”

There have now been 126 reported deaths of incarcerated individuals, an incalculable loss.  They were parents, siblings, and children.  They were us.  Some of their deaths were surely preventable.  BOP’s press releases reveal that the majority — 93 — were at higher risk of complications from COVID-19 and BOP knew it.  At least a quarter of those who have died in BOP’s care were seventy or older.  Last month, BOP told the Washington Post that at least 18 individuals died while their requests for compassionate release were pending.  To date, we have identified 19 individuals who died in BOP custody after filing — and in some cases, even after being granted — requests for release....

BOP and DOJ have ignored the tools Congress gave them to lower prison populations safely.  The bipartisan CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  But in response, AG Barr and BOP have issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  To date, BOP has approved for transfer to home confinement only 4.4% of the 174,923 who were in custody on February 20.  The DOJ OIG examined BOP’s response to COVID-19 at one of BOP’s hardest-hit facilities, Lompoc Federal Correctional Complex, and found that BOP’s use of home confinement at FCC Lompoc was “extremely limited.”  The Department of Justice (DOJ) has not released demographic data on the individuals BOP has approved for home confinement, despite congressional demands.  At a time when transparency is more important than ever, the federal incarceration system is a black box. “The problem is that prisons in the U.S. are not accustomed to oversight and transparency.”

Thanks to the First Step Act of 2018, individuals no longer must depend on BOP to initiate a motion for compassionate release. Post-FSA, defendants may file a motion directly with the court 30 days after the warden’s receipt of a request.  But during the COVID-19 crisis, this 30-day delay, coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.  At FMC Carswell, a medical facility that houses the most medically vulnerable women in BOP, “fewer than 20 women” have reportedly received compassionate release.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

September 9, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

New report details racial disparities in every stage of the Massachusetts criminal justice system

Via email I received word of this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  Here is a brief account of the 100+-page report and its findings from the text of the email that I received:

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

September 9, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, September 8, 2020

"The Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and Opportunities After Arrest or Conviction"

Many-Roads-Cover-1-768x994The title of this post is the title of this big new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center. The report, among other valuable elements, provides a "National Ranking of Restoration Laws" for all states and DC. Here is part of the 100+ page report's executive summary:

This report sets out to describe the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This is an update and refresh of our previous national survey, Forgiving and Forgetting in American Justice, last revised in 2018.  Much of the material in this report is drawn from our flagship resource, the Restoration of Rights Project.  We are heartened by the progress that has been made toward neutralizing the effect of a criminal record since the present reform era got underway in a serious fashion less than a decade ago, especially in the last two years.

This report considers remedies for three of the four main types of collateral consequences: loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits, notably in the workplace.

Its first chapter finds that the trend toward restoring the vote to those living in the community — a long-time goal of national reform organizations and advocates — has accelerated in recent years.  Further reforms may be inspired by the high-profile litigation over Florida’s “pay-to-vote” system, which shines a national spotlight on financial barriers to the franchise.  This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon.

The second chapter deals with laws intended to revise or supplement criminal records, an issue that has attracted the most attention in legislatures but that has benefited the least from national guidance. It is divided into several parts, based on the type of record affected (conviction or nonconviction) and the type of relief offered (e.g. pardon, expungement, set-aside, certificates, diversion, etc.).  The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground.

The third chapter concerns the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered by public employers and occupational licensing agencies.  Legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute of Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights research and advocacy group.  Regulation of private employment has also been influenced by national models, although to a lesser extent and more needs to be done in this area.

This report makes clear that substantial progress that has been made in the past several years toward devising and implementing an effective and functional system for restoring rights and status after arrest or conviction.  The greatest headway has been made in restoring rights of citizenship and broadening workplace opportunities controlled by the state. The area where there is least consensus, and that remains most challenging to reformers, is managing dissemination of damaging criminal record information.  Time will tell how the goal of a workable and effective relief system is achieved in our laboratories of democracy.

September 8, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Monday, September 7, 2020

Reviewing how much and how little the FIRST STEP Act has achieved

Jacob Sullum has this great new Reason piece that spotlights key data from this recent US Sentencing Commission report on the first year under the FIRST STEP Act.  The full headline details the themes: "The FIRST STEP Act Has Reduced Prison Terms for More Than 7,000 People. While that's nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans behind bars." I recommend the piece in full, and here are snippets (with links from the original):

During the first full calendar year in which the law applied, it resulted in shorter sentences for more than 4,000 drug offenders. While that is nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans, including more than 68,000 drug offenders, behind bars....

In 2019, the USSC report says, 2,387 already imprisoned crack offenders qualified for shorter sentences under the FIRST STEP Act's retroactivity provision. The average reduction was 71 months, making the average sentence for this group 187 months (more than 15 years), down from 258 months (more than 21 years).... The second most significant FIRST STEP Act sentencing reform in 2019 (again, measured by the number of people affected), was its widening of the "safety valve" that allows low-level, nonviolent drug offenders to avoid mandatory minimums they otherwise would receive. The USSC reports that 1,369 defendants benefited from that expansion in 2019....

The law also expanded the "good time" credits that allow prisoners to be released early. Although the USSC report does not analyze the impact of that provision, the Justice Department reported last year that more than 3,100 prisoners had benefited from it. 

By the end of last year, then, more than 7,000 people either had been released from prison earlier than they otherwise would have been or were serving sentences that will end sooner than would have been the case before the FIRST STEP Act took effect. That is a meaningful accomplishment. Thousands of people will spend less time behind bars, and more time with their families, friends, and neighbors, thanks to this law, and that number will rise each year.

At the same time, the law's beneficiaries at this point represent less than 5 percent of the federal prison population, less than 11 percent of drug offenders in federal prison, and less than 10 percent of federal criminal cases each year. And while a crack offender who serves 15 years rather than 21 years in prison surely is better off, the reduced penalty is still draconian, especially if you think peaceful transactions involving arbitrarily proscribed intoxicants should not be treated as crimes to begin with.

Prior recent related posts:

September 7, 2020 in Data on sentencing, Drug Offense Sentencing, FIRST STEP Act and its implementation | Permalink | Comments (2)

Sunday, September 6, 2020

"Racial Sympathy and Support for Capital Punishment: A Case Study in Concept Transfer"

The title of this post is the title of this recent paper from multiple authored that I just noticed on SSRN.  Here is its abstract:

Beliefs about race, especially racial resentment, are key predictors of public support for capital punishment and punitiveness generally.  Drawing on a conceptual innovation by political scientist Jennifer Chudy, we explore the utility of transferring into criminology her construct of racial sympathy — or Whites’ concern about Blacks’ suffering.

First, across three data sets, we replicate Chudy’s finding that racial sympathy and resentment are empirically distinct constructs.  Second, based on a national-level 2019 YouGov survey (n = 760 White respondents) and consistent with Chudy’s thesis, racial sympathy is then shown to be significantly related to the race-specific view that capital punishment is discriminatory but not support for the death penalty or harsher courts.  Racial sympathy also is positively associated with advocacy of rehabilitation as the main goal of prison. Notably, in all models, racial resentment has robust effects, increasing punitive sentiments.  Taken together, the results suggest that racial sympathy is a concept that can enrich criminologists’ study of how race shapes crime policy preferences in the United States and beyond.

September 6, 2020 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (0)

"Lives on the Line: Women with Incarcerated Loved Ones and the Impact of COVID-19 Behind Bars"

The title of this post is the title of this interesting recent report I just came across from the "Lives on the Line Campaign." Here is part of the start of the report's executive summary:

Incarceration has always posed a grave threat to public health. Jails, prisons, and detention centers subject people to dangerous, unhealthy, inhumane conditions and experiences by design.  So, when COVID-19 became a pandemic, we knew that our loved ones’ lives were on the line. We knew that the crowded, unsanitary conditions behind bars and a lack of access to medical care would mean that incarcerated people would be among those hit hardest by the virus.  We knew that the patriarchal, punitive values embedded into the prison industrial complex would prevent incarcerated people from receiving the kind of care they need to survive a pandemic.  And we knew that this harm would ripple out to cause profound physical, emotional, and economic harm for the communities that mass incarceration targets: historically marginalized people, especially Black and Brown communities and women.

In response, Essie Justice Group, in partnership with Color of Change, created the Lives on the Line survey for people with incarcerated loved ones.  Knowing that carceral spaces are designed to obscure their own violence, the survey sought out concrete data that could illustrate what was happening behind bars and buoy the efforts of advocates across the country fighting to free incarcerated people amidst the COVID-19 pandemic.  Carceral facilities are using COVID-19 as poor justification to further isolate incarcerated women, men, and people of all genders from the outside.  Therefore, we put out a public call to people with incarcerated loved ones to share information and testimonies, acknowledging that women with family members behind bars are uniquely material witnesses to what is happening in prisons, jails and detention centers during COVID-19. Our survey ran over a four-week period from May 5th to June 7th, 2020.  We received 709 responses.

The data we collected makes clear that what is happening with COVID-19 behind bars is a humanitarian and public health disaster.  Jails, prisons, and detention centers are callously failing to take bare minimum measures to mitigate the spread of COVID-19, such as instating distancing protocols or providing adequate supplies of free soap, disinfectant, or masks to incarcerated people.  Facilities have exploited the virus as an opportunity to further sever connections between incarcerated people and their support networks, including their lawyers and their loved ones.  In a moment when people need to be released faster than ever, court dates, hearings, and release dates are being delayed.  As a result, incarcerated people are suffering and dying from COVID-19 at alarmingly high rates.  They and their loved ones live with fear, extraordinary anxiety, and extreme isolation.  Incarceration is fundamentally incompatible with human dignity and human health; COVID-19 makes that undeniable.

A key objective of this report is to highlight the disparate impact of COVID-19 behind bars on Black people and Black women, uplifting the crisis as a gender and racial justice issue.

September 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, September 4, 2020

Plenty more COVID headlines and stories in incarceration nation

I am now generally rounding up prison-COVID press pieces every few weeks, even though the ugliness of American prisons and jails during a pandemic is a felt reality for millions of incarcerated persons and their families every day.  As I have said before, we should be thankful that the press and commentators keep reporting and discussing these stories that keep emerging from our prisons and jails:

From the Appalachian Media Institute, "A Call for Help (from Prison During COVID)"

From Cal Matters, "COVID-19 hotspots revealed the need for prison reform and better rehabilitation"

From Carolina Public Press, "Are NC prisons in contempt? Punishing sick, misleading information alleged as judge weighs action"

From CNN, "Prison inmates are twice as likely to die of Covid-19 than those on the outside, new report finds"

From Cowboy State Daily, "Due to Coronavirus, Wyoming Penitentiary Prisoners Let Out Of Cells 15 Minutes A Day"

From Governing, "COVID Prison Disaster Prompts Reform Bills: Legislative Watch"

From Montana Public Radio, "'It’s Like Sardines:' Advocates Call For Health Protections For Inmates"

From STAT, "As Covid-19 cases in prisons climb, data on race remain largely obscured"

From WBUR, "Medical Experts Raise Questions About COVID-19 Data From Mass. Jails And Prisons"

In this round-up, I have left out stories about continued increases in positive COIVD cases and deaths among prisoners not because there aren't any, but because there are too many to cover them all effectively.

September 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, September 3, 2020

"Judicial Disparity, Deviation, and Departures from Sentencing Guidelines: The Case of Hong Kong"

The title of this post is the title of this notable new article appearing in the latest issue of the Journal of Empirical Legal Studies authored by Kevin Kwok-yin Cheng, Sayaka Ri, and Natasha Pushkarna.  Here is its abstract:

Analyzing sentencing disparity calls for more calibrated measures to capture the nuances of judicial discretion within jurisdictions that adopt strict sentencing guidelines.  This article uses an unconventional outcome variable, percent deviation, to investigate guideline digressions in a nested, multilevel model.  Percent deviation is calculated based on the difference between the guidelines’ “arithmetic starting point” and the actual starting point that a judge adopts.  Two equations were used to measure percent deviation from the arithmetic starting point before and after adjustment for guilty plea sentence reductions.

Extracting data on drug trafficking cases from an open‐source database from the Hong Kong Judiciary (n = 356), we illustrate how percent deviation can be employed as a measure of inter‐judge disparity using hierarchical linear models (HLMs).  Our findings suggest that approximately 8 to 10 percent of the deviation in sentence length can be attributed to judges’ differential sentencing behaviors.  The deviation is affected by case characteristics as well as judicial characteristics.  Due to the wide guideline ranges, departures from said guidelines’ ranges are not common.  This indicates that the guideline ranges mask the deviation and inter‐judge disparity that exist and recur.

September 3, 2020 in Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act

Regular readers are surely familiar with the big deal I have long made about the statutory changes to the so-called compassionate release provisions in federal law via the FIRST STEP Act.  In posts here and here way back in February 2019, I was talking up these changes as the "sleeper provisions" in the Act because it now let persons in prisons move directly in court for a sentence reduction.  By May 2019, I was wondering aloud here about whether anyone was collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act.  From the get-go, I have tried to flag notable rulings granting sentence reductions under 3582(c)(1) since the passage of the Act, but the coronavirus pandemic created so much jurisprudence in this space that I was ultimately only able to do lengthy postings like this one of grants on Westlaw.

Against this backdrop, I was so very pleased to see that the US Sentencing Commission's big new report on "The First Step Act of 2018: One Year of Implementation" (discussed here, available here) includes a final section discussing "Compassionate Release" (at pp. 46-49).  Somewhat disappointingly, this section is quite brief and the data provided is not especially rich or detailed.  But some data is better than nothing and certainly worth reviewing:

During Year One, 145 motions seeking compassionate release were granted, a five-fold increase from fiscal year 2018 (n=24)... [and] of those motions granted during Year One, 96 (67.1%) were filed by the offender and 47 (32.9%) were filed by the BOP.... 

Offenders who benefited from compassionate release in Year One received larger reductions and served more time when compared to those granted release in fiscal year 2018. The average length of the reduction in sentence was 68 months in fiscal year 2018; sentences were reduced, on average, by 84 months in Year One.  The average months of time served at the time of release also increased, from 70 months to 108 months.  The average age at the time of release increased by ten years, from 51 years old at the time of release to 61 years old....

In Year One, most (81.4%) compassionate release grants were also based on medical reasons.  Of the 145 compassionate release motions granted, 118 were based on the medical condition of the defendant, 15 were based on age, two were based on family circumstances, and 15 were based on other extraordinary and compelling reasons.  Of the 118 granted for medical reasons, 75 were based on terminal illness, 31 based on a condition or impairment that substantially diminishes the ability of the defendant to provide self-care within the correctional facility environment, and in 12 the type of medical reason was not further specified.

An additional appendix (Appendix 4 on p. 71) provides a break-down of the guidelines under which these persons receiving sentence reductions were initially sentenced.  These data look somewhat comparable to the general federal prison population, as about half of the recipients were sentenced under the drug guideline.  But it seems white-collar guidelines and the robbery guideline may be somewhat over-represented, though that may reflect that these offenders are more likely to be older and/or subject to more extreme sentencing terms for various reasons.  Other than knowing that a lot more sentence reduction motions were granted in the first year after the FIRST STEP Act and that most were for medical reasons, these "raw" data do not tell us that much more about this interesting little part of the sentencing world.  (Notably, the USSC does not report at all, and may not be collecting, data on how many sentence reduction motions have been brought to, and have been denied by, district courts.  Grants only tells us only so much, though even grant data could and should be subject to some more detail analysis to help Congress and other assess whether this mechanism was working as intended in 2019.)

Critically, as the USSC report makes clear, its data here are from just the first full calendar year the First Step Act was in effect (“First Step Year One”) running from December 21, 2018 through December 20, 2019.  In other words, this report concerns entirely pre-COVID data, and that is HUGELY important because there has been, roughly speaking, about a nearly 20-fold(!) increase in sentence reductions grants over the last six months of our COVID era.  Specifically, the BOP is now reported at this FSA page that there have been "1,498 Approved" total post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  Doing the math, this seems to mean that while there were 145 motions granted in First Step Year One, there have been 1,353 more motions granted since that time (nearly all of which, I think, have been over the last six months).  Framed another way, we can say that, on average, in the year after passage of the FIRST STEP Act, roughly a dozen sentence reductions motions were granted each month, and now in the COVID-era, more than 220 are being granted each month!  

I sincerely hope the USSC is planning to do a more detailed and informative accounting of its First Step Year One data, as I think a lot could and should be learned from how judges responded to these motions before COVID.  But I am now even more interested to see data from the COVID era, as the number of cases (and probably the number of reasons for grants) has increased so dramatically.  At the same time, the relative rarity of these sentence reductions should not be forgotten.  With a federal prison population of around 175,000 through 2019, the USSC data show that less than 0.1% of all federal prisoners benefited from a sentence reduction that year.  With all new COVID grants, we still have well under 1% of the federal prison population receiving so-called compassionate release.  That still does not seem anywhere close to a lot or enough compassion to me.

September 3, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, September 2, 2020

CCJ releases new "Impact Reports" on "COVID-19 and Prisons" and "COVID-19 and Jails"

Earlier today I was praising the work of the Council on Criminal Justice (CCJ) for launching an important and impressive new commission to assess the impacts of COVID-19 on the criminal justice system (basic details here).  Not more than a few minutes later, I received an email about two new important reports from the commission.  Here is the heart of the email with links to the reports:

New research released today by the National Commission on COVID-19 and Criminal Justice found wide disparities among states in rates of COVID-related deaths and cases in prisons.  Five states — Arkansas, New Mexico, Kentucky, Ohio, and Delaware — reported prison mortality rates more than eight times higher than rates for their general state populations, while some states — including New York and Pennsylvania — reported prison death rates below those for the non-incarcerated.

Overall, after adjusting for the age, sex, and race/ethnicity of incarcerated individuals, the study found that theCOVID-19 mortality rate in state and federal prisons is twice that of the death rate for the general population.  Without those demographic adjustments, the rate of COVID-19 cases in prisons is more than four times the national rate. 

The Commission also released a separate analysis of the pandemic’s impact on jail populations, based on more than 14 million daily jail population records collected between January 1 and July 20.  Reflecting data from 375 facilities in 39 states, it found that jail numbers declined by an average of 31% between the issuance of the White House Coronavirus Guidelines on March 16 and mid-May.

The declines were accompanied by changes in the composition of jail populations.  After pandemic responses began in March, data showed that those released from jails were on average 34% more likely to have been booked on felony charges, and had been detained for 71% longer, compared to pre-pandemic releases.  The shares of people in jail who were booked on only misdemeanor charges, who were female, and who were white all decreased, while the proportions of those who were black, male, age 25 or younger, and booked on felonies increased.  These compositional changes have persisted even as the jail population trend reversed, growing 12% between mid-May and July 20. 

The jails study, by  Anna Harvey and Orion Taylor of New York University’s Public Safety Lab, also showed that rebooking rates for people released after March 16 remained at or below pre-pandemic rates.  These findings suggest the population reduction did not negatively affect public safety during the first three months of the COVID-19 outbreak, but the authors caution that this could change as the pandemic wears on....

The prisons report was prepared by economist  Kevin T. Schnepel of Simon Fraser University. Analyzing data through August 19, it also found that:

  • Among large correctional systems, Ohio reported 86 COVID-related deaths and a prison death rate more than 11 times the state rate; Texas had 112 deaths and a mortality rate about three times the state rate; and California, with 53 deaths, had a death rate about twice the state rate.
  • The highest prison mortality rate was reported by Arkansas. With 34 deaths and a prison population of about 15,500, its mortality rate of 218 deaths per 100,000 people in prison was nearly 20 times the state rate.
  • Fourteen states reported zero COVID-19 deaths within their prisons, and six reported COVID-19 death rates below adjusted state mortality rates.
  • The Federal Bureau of Prisons – the largest single prison system in the nation with about 179,000 people held in facilities – reported 116 deaths and a mortality rate nearly twice the national rate.
  • Overall, the highest mortality rates were reported in large prisons (over 1,000 people), which accounted for 83% of total confirmed coronavirus infections and 87% of total deaths.

September 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

In praise of a bipartisan effort to assess and address COVID and criminal justice

I noted a some weeks ago that the Council on Criminal Justice (CCJ) — a favorite new organization of mine in part because they asked me to take a close look at the 1994 Crime Bill's sentencing provisions and because they recently produced a great report urging federal criminal justice reforms — has launched an important and impressive new commission to assess the impacts of COVID-19 on the criminal justice system (basic details here).   I am pleased to see that the heads of the commission, former AGs Loretta Lynch and Alberto Gonzales, have this new Hill piece about its work.  Here are excerpts:

Across our country, the coronavirus is placing unprecedented pressure on those who live and work within our justice system.  From our local jails to courts, police precincts, and community organizations, the impacts of the pandemic are forcing us to improvise as we struggle to dispense justice and promote safety.

But which of our new policies and practices work best, are backed by evidence, and merit our trust?  How can we ensure that our justice system operates more fairly and effectively, notably for communities of color and lower income Americans?  Could that realignment create a path to restoring public confidence and trust in the justice system as it seeks to provide not just accountability but also fairness and transparency?

The urgent need to answer those questions is among the reasons we are serving as chairs of a national commission on the coronavirus and criminal justice.  As two former United States attorneys general, one who served in a Democratic administration and one who served in a Republican administration, we do not see eye to eye on every issue.  But we do agree that the threat of the pandemic to our justice system demands an independent response guided by research and experience.

That is precisely what this commission contributes during this historic moment in time.  Launched by the Council on Criminal Justice, it will assess the impact of the coronavirus on the justice system, develop priority strategies to contain outbreaks, and recommend policy changes to better balance public health and public safety.

We are fortunate to join numerous members who bring a wide range of experience to our work on the commission.  They include justice system leaders on the front lines, a big city mayor, community activists, a public health specialist, a respected incarceration researcher, and a formerly incarcerated individual.  Testimony from other experts and advocates will ensure our work is informed by a broad set of views.

Given the urgency of the crisis, and the thirst for reliable and realistic solutions, we are moving quickly.  In the coming weeks, we will complete our evaluation of the impact of the coronavirus on courts, corrections, law enforcement, and community organizations.  We will identify cost effective ways to minimize the spread of the pandemic and the impact of future outbreaks.

Our second phase will focus on reforms of the justice system.  The coronavirus may be novel, but it brought to the fore problems that have plagued the justice system.  By the end of the year, we will recommend the policies and practices that must change based on what the pandemic and response have highlighted for us about the fairness and effectiveness of the justice system, notably for people of color and the poor....

In our deliberations, we are driven by the knowledge that the pandemic has exacted a heavy toll on those who work and live within our justice system.  The largest clusters of the coronavirus across the country are in prisons and jails, where more than 145,000 incarcerated people and staff have tested positive.  Nearly 900 incarcerated people and almost 90 correctional employees have died....

The coronavirus will shape our society for generations, so helping our courts, police districts, correctional facilities, and community organizations emerge from the pandemic more prepared and better equipped to deliver truly impartial and racially blind justice is a daunting challenge.  But we must, and we will, meet this moment head on.

September 2, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Notable new tool for tracking COVID-19 risk in state prisons

I just was altered to this notable new tool coming from the Litmus Program at the NYU Marron Institute, which is described via this posting titled "State Prison Covid-19 Risk Tracker":

Correctional and detention facilities have proven to be hotspots for COVID-19, with the ten largest outbreak clusters in the United States occurring in prisons or jails.  Staff and visitors come and go from correctional institutions, potentially bringing infection in and out.  As facility administrators and health officials shift from immediate crisis response to managing a dynamic and long-term event, data-tracking tools can guide proactive steps to manage outbreaks and improve conditions of confinement.

The Litmus team generated a census of state adult correctional and detention facilities and created an interactive mapping tool that uses publicly available, county-level data from the New York Times on numbers of confirmed cases and deaths, updated daily, to indicate which facilities are located in or near counties that appear to be at high risk for community transmission.  Community risk is calculated using three alternative metrics: recent deaths, recent death rates per 100k, and current case-doubling time.

With support from Unorthodox Philanthropy, the NYU Marron Institute interactive mapping tool is created as a resource for families and advocacy groups and to assist decision-makers in prioritizing PPE, staff and resident testing, increased social distancing (e.g., dorm closures), more stringent cleaning procedures, and adapting policies, including early release, in response to COVID-19 outbreaks.  It can guide intra-system transfers, indicating facilities between which it may be safe to transfer residents and facilities that should restrict new transfers and keep vacancies as people release, to allow for greater social distancing.  The tool is also intended to make community-risk information more accessible so that it can be used to improve conditions of confinement.  Community-risk data can help prioritize lower-risk facilities for relaxing restrictions on external service providers and allowing more congregant time or outside visitors, improving upon the stark conditions in which many incarcerated people currently reside.  It can inform release protocols, allowing for prioritization of quarantine housing, testing, and other support for people returning to their communities from high-risk facilities and serve as a mechanism to target community partnerships between facilities, local health departments, and community-serving organizations.

September 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

FAMM announces notable new campaign focused on a "Second Chances Agenda"

Long-time readers are surely aware that I have long advocated for, and written a lot about, revisiting problematic sentences and expanding the means and manner of doing so.  (I have written numerous articles related to this topic, some of which I have linked below.)  Consequently, I was very pleased to see this press release from FAMM discussing its new campaign:

FAMM announces a new “Second Chances Agenda“ campaign aimed at urging state and federal policymakers to increase their use of compassionate release and clemency, and to encourage the introduction of more second look legislation.

“One of the things we’ve learned during the COVID-19 pandemic is that every state knows to impose lengthy mandatory sentences, but very few have ways to revisit those sentences when the person or circumstances have changed,” said FAMM President Kevin Ring. “There are people languishing in prison who do not need to be there – and we are no safer for it.

“There are also people who have made remarkable changes in their lives since entering prison, and should be considered for a second chance. If people have served a significant sentence, and they have succeeded in rehabilitating themselves, we should give them an opportunity to go home.”

FAMM’s Second Chances Agenda campaign calls for the following:

  1. Pass “second look” laws. FAMM is urging the creation of laws in every state that direct courts to reconsider a person’s sentence after 10 or 15 years to determine whether a shorter sentence is appropriate. Learn more about second look laws.
  2. Expand compassionate releases. Sometimes referred to as medical or geriatric parole or release, compassionate release programs at the state level are failing to allow early release for elderly and sick people who pose no risk to public safety. Learn more about how these systems work around the country and how FAMM is working to improve them.
  3. Expand clemency. The president and most governors have the authority to shorten excessive prison terms but often fail to use their clemency power to its fullest extent. FAMM is committed to working with governors and the White House to expand the use of executive clemency and to identify people who deserve a second chance.

FAMM also supports other reforms that prosecutors and lawmakers could use to provide second chances.

  • Eliminate extreme mandatory sentences and make the reforms retroactive – When lawmakers pass smart reforms, they rarely apply them retroactively, leaving people to serve unjust sentences that are no longer in the law.
  • Parole reform – Some states have parole, but rules and red tape make it too difficult for people to get it.
  • Sentence integrity units – Prosecutors can promote second chances by reviewing sentences periodically to see if they are appropriate.

FAMM has also launched similar campaigns in ArizonaFlorida and Pennsylvania today.

As even newer readers should also realize, perhaps from this initial posting or this more recent one, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center have been working together on a writing competition for law students and recent graduates to propose a "second-look statute" for Ohio (which is discussed more fully on this DEPC webpage).

Here are just a few of my writing on these kinds of topics (which I might now call my own "Second Chances Agenda"):

September 2, 2020 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Notable exploration of criminal justice structures for "emerging adults"

This morning I received an email altering me to a big new report on an interesting modern topic that is focused on a population and a region especially near to me heart.  Here is the text of the email, which provides a link to the nearly 100-page report and a useful overview of its coverage:

Today, Juvenile Law Center released “Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region,” a report on criminal justice reforms for young people between the ages of 18 and 24.  The report, funded by a grant from the Joyce Foundation, cites new research which shows that these “emerging adults” share many of the same characteristics as teens in the juvenile justice system, yet they are treated very differently.  Emerging adults also represent a disproportionate share of the justice-involved population, accounting for a third of all criminal arrests nationwide.  They also experience the worst racial disparities in incarceration and arrest rates of any age group.

“Racism permeates our criminal justice system at every stage and available data suggests racial and ethnic disparities are worst for those in the emerging adult population,” said Katrina L. Goodjoint, Staff Attorney at Juvenile Law Center and co-author of the report. “In Illinois, 9.4 Black emerging adults are arrested per every white emerging adult. Eliminating mass incarceration and reducing racial disparities necessarily require reforming the justice system’s punitive treatment of emerging adults.”

Juvenile Law Center’s report highlights the need for a new, developmentally appropriate approach to criminal justice involvement for this population.  The report includes research showing that many areas of the law — from new federal tobacco regulations to extended access to health insurance under the Affordable Care Act — already recognize and make accommodations for the developmental characteristics of emerging adulthood.  Justice systems around the country have also begun to do the same.  The report describes some of the new initiatives targeted at this population, including:

  • raising the age of juvenile court jurisdiction
  • youthful offender statutes
  • diversion programs, young adult courts, and other specialized criminal justice programs for emerging adults
  • modifications to mandatory sentences and other harsh penalties
  • expungement of records
  • expanded access to supports and services outside the criminal justice system.

“People do not magically transform from children to adults on their 18th birthdays,” said Karen U. Lindell, Senior Attorney at Juvenile Law Center and one of the report’s authors. “Other areas of the law have long recognized that fact — limiting young adults’ abilities to engage in risky activities, like drinking or purchasing firearms, and offering them additional support, like greater health insurance coverage and special education services.  Yet the criminal justice system is just beginning to acknowledge the distinctive needs and characteristics of emerging adults.”

The report released today focuses on the laws and policies affecting emerging adults in six Great Lakes region states: Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. For each of these states, the report provides a comprehensive overview of the current legal landscape for emerging adults, including available data on justice-involved emerging adults, relevant criminal and juvenile justice statutes, existing criminal justice programs, and other systems serving emerging adults in the state.  By providing an in-depth analysis of the current legal landscape, this report lays the foundation for meaningful criminal justice reform for emerging adults — both in the Great Lakes region and throughout the country.

September 2, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Fees, Fines, and the Funding of Public Services: A Curriculum for Reform"

The title of this post is the title of this interesting new reader produced by a group of law school centers. Here is the full introduction to the collection of articles:

Since 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines & Fees Justice Center and the Berkeley Law Policy Advocacy Clinic, have collaborated to mitigate the problems faced by people of limited means and resources who interact with criminal punishment systems around the United States.  Through a series of workshops and materials, we have examined how law has enabled and, on occasion, limited these harms, experienced disproportionately by communities of color.

Budget pressures are part of what drives state and local governments to rely on monetary sanctions.  Reform efforts have, at times, been stymied by arguments that governments “need” the money generated by regressive fines and fees. In 2008, during and after the Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues— including from a host of legal assessments.  Given that experience, we know that the economic disruptions created by the current COVID-19 crisis will likely result in governments’ considering additional use of monetary sanctions and “user” fee financing to generate revenue.  The current economic constraints place strains on subnational budgets even more acute than those experienced a dozen years ago.  Thus, we fear that governments may scale up the imposition and the enforcement of monetary sanctions.  More tools are needed to resist these efforts, as the economic effects of the pandemic will frame the years to come.

Knowledge of subnational systems of taxing and budgeting and of fiscal policymaking processes can be put to use to reduce and to end governments’ reliance on user fees for courts and for other aspects of criminal systems.  This reader aims to help experts in public finance to understand the misuse of court-based assessments which are regressive revenue streams.  Subsequent volumes will provide a primer on public finance for people knowledgeable about the law and practices of unfair monetary sanctions through an overview of how money is collected and allocated at the state and local level.  These materials interact with ongoing seminars, sometimes virtual, to link people expert in public finance with their counterparts seeking to reform unfair monetary sanctions.

Through monographs such as this, we hope to support work underway to shape just and equitable revenue-generation mechanisms that avoid imposing harmful costs on vulnerable individuals, families, and communities.  This is the third volume in this series.  See ARTHUR LIMAN CENTER FOR PUBLIC INTEREST LAW, WHO PAYS? FINES, FEES, BAIL, AND THE COST OF COURTS (2018), ARTHUR LIMAN CENTER FOR PUBLIC INTEREST LAW, ABILITY TO PAY. See also Inability to Pay: Court Debt Circa 2020, N.C. L. REV.

We should note that, to be concise, we have provided just a snapshot of a rich literature.  In the few essays excerpted here, we have cut sections and references, and we provide the original publication information to enable easy access to the originals.  This project is made possible by support from Yale Law School, the Liman Center, and Arnold Ventures. Our hope is that through these many efforts, fairer and more just practices will result.

September 2, 2020 in Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, September 1, 2020

More great resources from the Collateral Consequences Resource Center

Last week in this post, I highlighted that folks at the Collateral Consequences Resource Center were producing series of posts drawn from a forthcoming huge report surveying mechanisms for restoring rights and opportunities following arrest or conviction.  Since then, the CCRC folks have these three more new postings:

September 1, 2020 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0)

Effective and timely review of the state of disenfranchisement for those with criminal convictions

This lengthy new Stateline piece, headlined "More People With Felony Convictions Can Vote, but Roadblocks Remain," provides an effective review of the realities of felon disenfranchisement circa 2020. I recommend the full piece and here are excerpts:

In every state except Maine and Vermont, people convicted of felonies are stripped of their voting rights while in prison. In most states, that ban extends to those on probation or parole, while some states have additional time and fee requirements, disenfranchising millions of people.

[Iowa Gov Kim] Reynolds restored automatic voting rights to most people with felony records after they complete their sentence, including parole or probation; the exceptions are people with homicide convictions, who must file an application.  Under the order, an estimated 60,000 additional people now are eligible to vote in the Hawkeye State.

They join the ranks of hundreds of thousands of others with felony convictions who are newly eligible to vote in the general election this year.  Since the 2016 election, Colorado, Florida, Kentucky, Louisiana, Nevada, New Jersey, New York and Virginia also have implemented or expanded voting rights for some people convicted of felonies.

The political stakes are up for debate.  Roughly 630,000 people with felony convictions can vote this year in Florida, nearly six times the 113,000 vote-margin by which Donald Trump beat Hillary Clinton in the state.  But research has shown that like other voters, people convicted of felonies who are registered don’t necessarily vote.

Still, groups ranging from liberal political organizations to the nonpartisan League of Women Voters are working furiously to find these newly eligible voters as registration deadlines approach.  But the pandemic is complicating in-person registration drives, as are the uncertainties around mail-in voting.  And eight states explicitly require people with felony records to pay some form of court costs and fees before registering.

In 2016, an estimated 6.1 million people or 1 in 40 adults were unable to vote because of a felony conviction, according to the Sentencing Project, a Washington, D.C.-based research and advocacy organization. The project found that Black people were the most likely to be disenfranchised: More than 7 percent of the adult African American population, or 1 in 13 people, could not vote because of a felony conviction....

In Kentucky, an estimated 170,000 people with felony records were given voting rights in December under an order from Democratic Gov. Andy Beshear. As in Iowa, the order doesn’t automatically apply to people convicted of certain violent offenses. Grassroots advocacy organization Kentuckians for the Commonwealth has been working for years on expanding voting rights. Since Beshear’s order, and with the help of other organizations, it has put together a list of more than 60,000 names and contact information for people who now can register to vote....

In 2018, 65 percent of Florida voters supported a constitutional amendment to give voting rights to people with felony records who had completed parole or probation, with the exception of those convicted of murder or sexual offenses. But the GOP-controlled legislature last year passed a measure to require that restitution, fines and fees be paid before voting rights are restored. Over half of the estimated 1.4 million people convicted of felonies in the state have outstanding court costs or restitution, according to the Brennan Center for Justice at the New York University Law School.

Lawsuits have ensued over the constitutionality of the law, which opponents liken to a poll tax.  A federal judge in May found the requirement to be unconstitutional. But Republican Gov. Ron DeSantis appealed to the 11th U.S. Circuit Court of Appeals, which ruled in his favor.  Voting rights groups asked the U.S. Supreme Court to weigh in; the court in July left in place the appeals court’s order.  The issue remains before the appeals court, which heard arguments in the case Aug. 18.

Florida is known for close elections, and some political observers think a majority of the new voters would vote Democratic.  But Sean Morales-Doyle, deputy director of voting rights and elections in the Brennan Center’s Democracy Project, dismisses the notion that politics drive enfranchisement efforts.  “The decisions about who has the right to vote should never be based on an assessment of how we think someone is going to vote,” he said.  “We should be for or against voting rights restoration because of the merits of the policy, not the politics.”...

Beyond the push toward the November elections, voting rights activists eventually want to extend voting to people on probation or parole and people in prison.  “Residents who are required to pay taxes, be good citizens, they should also have a role in determining who governs them,” said Nicole Porter, advocacy director of state and local policy for the Sentencing Project.

A referendum on the ballot in California in November would give parolees voting rights.  Efforts are ongoing in other states, including Connecticut, where legislation proposed by Secretary of the State Denise Merrill, a Democrat, to extend voting rights to people on parole died this year.

September 1, 2020 in Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Fighting for a Second Look: Efforts in Ohio and Across the Nation"

6a00d8341c8ccf53ef026bde8d638d200c-320wiThe title of this post is the title of this webinar that I am honored to be a part of tomorrow, Wednesday, September 2, 2020, from 2-3pm ET.  You can register here, where you will see this description:

Draconian sentencing laws and practices stretch back decades and have yielded countless excessive prison terms nationwide.  As public awareness of this problem mounts, legal advocates and scholars have urged new legal mechanisms to allow courts to revisit unnecessarily long sentences.  In that spirit, the Ohio Justice & Policy Center and DEPC teamed up to create a writing competition for law students and recent graduates to propose such a "second-look statute" for Ohio.

Join us for a webinar that brings together leading advocates to discuss efforts across the country to create second-look provisions.  We will also announce the winner of our recent writing competition.

SPEAKERS

  • Shakyra Diaz, managing director of partnerships/Ohio state director, Alliance for Safety and Justice
  • William Johnston, senior program officer, Open Society Foundations
  • Michael Serota, associate deputy director, Academy for Justice, Arizona State University Sandra Day O’Connor College of Law
  • David Singleton, executive director, Ohio Justice & Policy Center

MODERATOR

  • Douglas A. Berman, executive director, Drug Enforcement and Policy Center

Regular readers may recall my repeated effort on this blog all summer long to flag this initial posting about the exciting new drafting contest emerging from a partnership of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center.  This webinar serves to cap off this exciting contest, which is discussed more fully on this DEPC webpage.

September 1, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Making the case for post-secondary education for people in prison

Emily Mooney has this effective new commentary at Politico headlined "We Already Have a Tool That Lowers Crime, Saves Money and Shrinks the Prison Population."  Here are excerpts:

In America, individuals released from prison often return to crime.  One study published in 2018, which analyzed data from 23 states, found that 37 percent of those released in 2012 returned to prison within three years.  Of those released in 2010, 46 percent returned to prison within five years.

But the recidivism rate is far lower for prisoners who are able to get some postsecondary education while in prison.  Fewer than 3 percent of graduates of [the Bard Prison Initiative], which is based in New York, return to prison.  In contrast, well over 30 percent of individuals released from the New York Department of Corrections and Community Supervision return to custody within just three years.  Other colleges with similar postsecondary education programs for prisoners also boast lower recidivism statistics than their state averages.

Providing education to the incarcerated is a win-win — it reduces future crime rates and saves public funds that otherwise would be spent keeping people in jail or prison. Unfortunately ... the 1994 Violent Crime Control and Law Enforcement Act rendered anyone behind bars ineligible to receive federal Pell Grants.  These grants, which give impoverished students financial aid for postsecondary education, had long been a critical funding mechanism for in-prison college programs.  The Pell Grant ban put a virtual end to postsecondary education for prisoners who weren’t able to take advantage of privately funded programs like Bard’s or who didn’t have greater familial financial support.

This situation remained largely unchanged until the announcement of the Department of Education’s Second Chance Pell Pilot Program in 2015.  By expanding educational opportunities for some people behind bars, the program aimed to help individuals returning home acquire work, financially support their families and claim a second chance for a better life.  The Pell Pilot Program currently allows around 10,000 students at selected institutions to receive Pell Grant funding each year to attend classes.  While better than nothing, there would be hundreds of thousands of individuals who would be eligible to receive Pell Grant funding if the ban was lifted.

While at least part of the improved recidivism rates depends on personal characteristics of the people who seek out educational opportunities, the findings of multiple studies that attempt to account for these differences reinforce the conclusion that investing in postsecondary education for prisoners is one of the smartest ways to increase safety in our communities....

[F]ailing to invest in postsecondary education for prisoners means a lost opportunity to save taxpayer dollars at a time when state and local budgets are reeling from lost revenue due to the Covid-19 pandemic.  Incarcerating someone usually costs tens of thousands of dollars a year. If Pell Grant eligibility for prisoners was reinstated, according to a report by the Vera Institute of Justice and the Georgetown Center on Poverty and Inequality, the savings to states is estimated to be approximately $365.8 million per year in incarceration costs alone.  This is likely an underestimate, since it does not include other direct and indirect costs of crime or potential benefits of educating prisoners, such as increased economic output.

This is forfeited money that could otherwise be available for investing in other taxpayer priorities. A 2016 brief by the Department of Education found that while per capita spending on corrections increased by almost half from the late 1990s to the early 2010s, the amount of state and local postsecondary education funding per full-time student plummeted.

On account of the potential cost-savings and public safety benefits, it is clear that federal policymakers of both parties should support reinstating Pell Grants. State policymakers, too, should look for ways to expand educational offerings within state and local correctional systems.  Luckily, lawmakers are beginning to introduce legislation to support these goals. A repeal of the Pell Grant ban was included in an appropriations “minibus” bill passed out of the House at the end of July; it currently is waiting for action by the Senate. If successful, this measure promises a new era of learning — and safety.

September 1, 2020 in Prisons and prisoners | Permalink | Comments (0)

Monday, August 31, 2020

"What We Got Wrong in the War on Drugs"

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

The War on Drugs is effectively over.  Drugs won.  This essay addresses some of the mistakes we made in that futile effort.  Allowing racism to motivate action and impede reform was a primary error.  So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. 

In whole, we largely addressed the narcotics trade as a moral failing rather than a market — and never got around to recognizing the size and shape of that market or to using market forces to control it.  Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

August 31, 2020 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

"Locking up my generation: Cohort differences in prison spells over the life course"

The title of this post is the title of this new Criminology article authored by Yinzhi Shen, Shawn D. Bushway, Lucy C. Sorensen and Herbert L. Smith.  Here is its abstract:

Crime rates have dropped substantially in the United States, but incarceration rates have remained high.  The standard explanation for the lasting trend in incarceration is that the policy choices from the 1980s and 1990s were part of a secular increase in punitiveness that has kept rates of incarceration high.  Our study highlights a heretofore overlooked perspective: that the crime–punishment wave in the 1980s and 1990s created cohort differences in incarceration over the life course that changed the level of incarceration even decades after the wave. 
With individual‐level longitudinal sentencing data from 1972 to 2016 in North Carolina, we show that cohort effects — the lingering impacts of having reached young adulthood at particular times in the history of crime and punishment — are at least as large (and likely much larger) than annual variation in incarceration rates attributable to period‐specific events and proclivities.  The birth cohorts that reach prime age of crime during the 1980s and 1990s crime–punishment wave have elevated rates of incarceration throughout their observed life course.  The key mechanism for their elevated incarceration rates decades after the crime–punishment wave is the accumulation of extended criminal history under a sentencing structure that systematically escalates punishment for those with priors.

August 31, 2020 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission issues big new report on "The First Step Act of 2018: One Year of Implementation"

Download (25)I am extremely pleased to see that the US Sentencing Commission this morning released this big new report (and this infographic) providing data and analysis on the impact of the First Step Act over the period it calls “First Step Year One” running from December 21, 2018 through December 20, 2019.  Importantly, though the report is titled "The First Step Act of 2018: One Year of Implementation," this document only examines key sentencing provisions and not all the prison reforms and other elements of the First Step Act. (As the start of the report explains: "This report examines the impact of five provisions of the First Step Act of 2018 related to sentencing reform.") 

In addition, and I think valuably, the report cover an entirely pre-COVID period and thus sets an interesting and important baseline for understanding the impact of the First Step Act before the pandemic may have changed things.  The most obvious change brought about by COVID was a sharp increase in the number of motions for compassionate release/sentence reduction, but I suspect there will be other impacts that will be reflected in future data.

With all that background, here are some "Key Findings" from the Introduction of the full USSC report:

REDUCING DRUG RECIDIVIST PENALTIES

Enhanced recidivist penalties imposed pursuant to 21 U.S.C. § 851 applied to fewer offenders in First Step Year One, as a result of the First Step Act’s narrowing of qualifying prior drug offenses. When enhanced penalties did apply, they were less severe than in fiscal year 2018.
• The number of offenders who received enhanced penalties decreased by 15.2 percent, from 1,001 offenders in fiscal year 2018 to 849 offenders in First Step Year One.
• The new 15-year enhanced mandatory minimum penalty, which was reduced from 20 years by the First Step Act, applied to 219 offenders in First Step Act Year One. By comparison, the 20-year enhanced mandatory minimum penalty applied to 321 offenders in fiscal year 2018....

EXPANDING SAFETY VALVE 

Offenders were more likely to receive relief from a mandatory minimum penalty or a reduction in sentence as a result of the First Step Act’s expansion of the safety valve eligibility criteria at 18 U.S.C. § 3553(f).
• In First Step Act Year One, of 13,138 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 41.8 percent (n=5,493) received statutory safety valve relief from the mandatory minimum penalty. By comparison, in fiscal year 2018, of 10,716 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 35.7 percent (n=3,820) received statutory safety valve relief.
• In First Step Act Year One, of 19,739 drug trafficking offenders, 36.1 percent (n=7,127) benefited from the safety valve, either by receiving relief from a mandatory minimum, a
guideline reduction, or a variance based on the new expanded eligibility criteria. By comparison, of 18,349 drug trafficking offenders, 32.1 percent (n=5,885) benefited from the safety valve in fiscal year 2018....

LIMITING 924(c) “STACKING”

The 25-year penalty for a “second or subsequent offense” under 18 U.S.C. § 924(c) applied less frequently in First Step Year One, as a result of the First Step Act’s limitation of the penalty to section 924(c) offenders with a final prior firearms conviction, as opposed to those with multiple section 924(c) charges in a single case....

RETROACTIVELY APPLYING THE FAIR SENTENCING ACT OF 2010

Since authorized by the First Step Act, 2,387 offenders received a reduction in sentence as a result of retroactive application of the Fair Sentencing Act of 2010....

COMPASSIONATE RELEASE

In the first year after passage of the First Step Act, 145 offenders were granted compassionate release under 18 U.S.C. § 3582(c)(1)(A), a five-fold increase from fiscal year 2018, during which 24 compassionate release motions were granted.

A lot could be said about these data and lots more in the report, but my short take away is that the sentencing revisions in the First Step Act largely achieved their intended goals and impacted a lot of cases, though they still have a relatively small impact on a massive federal criminal justice system.  For example, even though these data show that the First Step Act's expanded safety valve provision served to benefit roughly 1250 more federal drug defendants at sentencing, any system-wide benefit would seem to be largely eclipsed by the fact that the federal government brought roughly 1400 more drug cases into the federal system during First Step Year One.  When some federal drug sentences go down slightly, but the overall number of defendants being sentenced for drug cases goes up (and especially if the federal caseload increase involves mostly lower-level offenders), it is hard to get too excited about the impact of reform.

I do not want to throw cold water on the good news that this new USSC report represents.  Rather, I just want to stress that there is still a WHOLE lot more reform work needing to get done.  (There is also a whole lot more work needed to be done in analyzing this report, which I hope to be able to do in some subsequent posts.)

August 31, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (0)

Sunday, August 30, 2020

"The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law"

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

A growing trend in philosophical commentary about penal justice is what I loosely call criminal law skepticism.  The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems.  Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. 

I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane.  No single argument can refute them all.  Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective.  I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary.  No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.

August 30, 2020 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Can we somehow arrange for one of the upcoming Prez debates to be entirely about criminal justice issues?

Long-time readers know that, every four years, I cannot stop complaining that the Prez-election-season discourse and debates do not give nearly enough attention to a range of important criminal justices issues.  (Here are just a few example of this complaining in posts from 2008 and from 2012 and from 2016.)  For many reasons, it seems likely that the 2020 election season will have considerably more discussion of criminal justice issues from the candidates and in the media.  For example, this morning I saw this new NPR piece headlined "Fact Check: Trump's And Biden's Records On Criminal Justice," and here are excerpts:

For four nights, speakers at the Republican National Convention pilloried Democrat Joe Biden over his alleged weakness on crime and painted a dystopian future if he were to be elected in November. Biden and Democrats were "completely silent about the rioters and criminals spreading mayhem in Democrat-run cities," during their convention, President Trump charged on Thursday.  The previous evening, Vice President Pence warned, "The hard truth is you will not be safe in Joe Biden's America."... Pence claimed that Biden would "double down in the very policies that are leading to violence in American cites," to which Biden responded with a reminder that "right now ... we're in Donald Trump's America."...

Trump — who promised in his 2016 acceptance speech that "the crime and violence that today afflicts our nation will soon, and I mean very soon, come to an end" — has a spotty record when it comes to criminal justice reform.

His signature achievement on the issue, the widely touted First Step Act signed in 2018 and passed with bipartisan support in Congress, instituted sentencing reforms, including reducing harsh penalties for crack cocaine possession.  And on Friday, Trump pardoned Alice Johnson, a criminal justice reform advocate who delivered a powerful address at the Republican National Convention this week, and whose cause had been espoused by Kim Kardashian West. But some parts of the law have fallen short, activists say.

In June, following the unrest after George Floyd's killing, Trump signed an executive order that would provide federal grants to improve police training, and create a national database of police misconduct complaints. But it fell well short of what activists say is needed. Congress was unable to reconcile police reform proposals earlier this summer....

As Republicans were fond of noting during their convention, Joe Biden has a 47-year record as a U.S. senator and then vice president. During much of his Senate career, he was a member of and chairman of the Judiciary Committee, and in 1994 sponsored the Violent Crime Control and Law Enforcement Act.  It came in a different era, as Democrats set out to prove that they, too, were "tough on crime."  The bill included a 10-year ban on assault-style weapons as well as the Violence Against Women Act, which Biden points to today as a signal of his commitment to ending domestic violence.  But the act also included harsh penalties for drug-related crimes and money to construct new prisons, which critics said led to the mass incarceration of Black men. It also included funding to hire 100,000 additional police officers.

Now, Biden has backed away from some of the provisions in that bill, while at the same time rejecting calls by some in his party to defund police departments. He's proposed a ban on police chokeholds, a new federal police oversight commission, new national standards for when and how police use force, more mandatory data collection from local law enforcement and other steps.

There are three Presidential debates scheduled to begin in late September, and I am sure this season will bring at least a few questions on crime, police reform and racial justice issues.  But there are so many issues in the criminal justice arena that merit attention and that are likely to be of considerable interest to voters.  Clemency policies and practices, for example, could and should merit focused debate discussion.  So, too, should the operation of the death penalty, especially now that the Trump Administration has carried out five federal executions while the Biden policy task force calls for abolishing the death penalty "at the federal level, and incentiviz[ing] states to follow the federal government’s example."

And let's not forget marijuana and other drug policy issues.  At least six states in 2020 will be voting on state-level marijuana reforms, and other forms of reform concerning other drugs are also on various other ballot.  The Trump Administration has given some attention to the opioid crisis, and we ought to have both candidates discuss drug overdoses which still result in many, many more deaths of young people than has the coronovirus (NIDA reports over 4600 overdose deaths for persons aged 15-24 in 2018; the CDC reports under 400 COVID deaths for that same age group in 2020).

And the list of important topics for debate and discussion could go on and on: the operation and oversight of the federal Bureau of Prisons; reform of mandatory minimum sentencing provisions; voting rights for those with past convictions; the policies and practices of so-called progressive prosecutors; appointments to the US Sentencing Commission; barriers to effective reentry due to collateral consequences; the timeline and possible substance for a Second Step Act (and a Third Step Act).  The great new Council on Criminal Justice (CCJ) released a few months ago this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."   This report had 15 thoughtful recommendations for federal reform, each of which could justify extended debate discussion.

I will not belabor this point here, but in the coming months I likely will keep returning to the idea that an entire Prez debate should be devoted exclusively to discussing criminal justice issues.  The candidates' histories and well as their campaigns, not to mention the moment we are living through, justify more than just one or two questions on these topics.  As in years past, I expect to be disappointed on this front.  But, as in years past, I will keep using this platform to push what I think is a sound debate agenda for voters and the nation.

August 30, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Saturday, August 29, 2020

"Does Prison Work? A Comparative Analysis of Contemporary Prison Systems in England and Wales and Finland, 2000 to Present"

The title of this post is the title of this recent paper now available via SSRN and authored by Joseph Hale. Here is its abstract:

The prison systems in Scandinavian countries have become regarded by many as some of the best in the world, with low incarceration and recidivism rates.  Conversely, riots, overcrowding, inadequate staffing numbers, and high recidivism rates surround the prison system in England and Wales; such failures raise questions on what the role of prison in society is: the prevention and reduction of crime or, the social control and marginalisation of the most vulnerable members in our community?

By focusing on the prison systems in both England and Wales and Finland, this article will argue 1) that prison system in England and Wales has in recent years developed in becoming more focused towards rehabilitation but, still faces numerous challenges including working within predominantly Victorian-era carceral spaces, limited funding, lack of vocational training opportunities and the perception within a significant sector of the public that they have become ‘holiday camps’. 2) The Finnish prison system appears to encompass much higher regard for both prisoners’ welfare and a greater emphasis on rehabilitation building upon changes throughout the twentieth and twenty-first centuries. 3) By addressing stigmas and ensuring that opportunities are actively encourage and made more available, the English system, like Finland, could become a world-leading example; reducing recidivism and incarceration rates, and demonstrating that prison can work.

August 29, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Friday, August 28, 2020

Has anyone sentenced to life without parole ever before been granted a full Prez pardon?

Earlier today, I asked in this post "Has anyone sentenced to life without parole ever before spoken on final night of major political convention?".  I was referencing, of course, Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention. 

But now, as this post title highlights, I have a new, update question about Ms. Johnson based on this news as reported by Politico:  "President Donald Trump on Friday granted a full pardon to Alice Marie Johnson — the 65-year-old Memphis woman whose life sentence he commuted two years ago — just hours after Johnson spoke on behalf of Trump’s reelection campaign during the Republican National Convention."  Here is more:

Johnson was serving life in prison for a nonviolent drug offense when Trump commuted her sentence in June 2018 at the urging of reality TV star Kim Kardashian West, who visited the White House to advocate for Johnson’s release.

On Thursday, during the final night of Republicans’ nominating convention, Johnson delivered a primetime speech testifying to Trump’s “compassion” and commending the administration’s work to advance criminal justice reform legislation. “My transformation was described as extraordinary,” she said. “Truth is, there are thousands of people just like me who deserve the opportunity to come home.”

In an interview later Friday on CNN, Johnson said she “had no idea” Trump would grant her a pardon during their White House meeting.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Federal government completes its fifth execution of 2020

As reported in this AP article, a "Kansas girl’s killer Friday became the fifth federal inmate put to death this year, an execution that went forward only after a higher court tossed a ruling that would have required the government to get a prescription for the drug used to kill him." Here is more:

Questions about whether the drug pentobarbital causes pain prior to death had been a focus of appeals for Keith Nelson, 45, the second inmate executed this week in the Trump administration’s resumption of federal executions this summer after a 17-year hiatus.

Nelson, who displayed no outward signs of pain or distress during the execution, was pronounced dead at a federal prison in Terre Haute, Indiana, at 4:32 p.m. EDT — about nine minutes after the execution began.

There was silence from Nelson when a prison official looming over him asked if he had any last words to witnesses behind the execution-chamber glass. Those observers included the mother of 10-year-old Pamela Butler. who Nelson raped and strangled with a wire 21 years ago. Nelson didn’t utter a word, grunt or shake his head no. After the official waited for about 15 seconds, his eyes fixed on Nelson waiting in vain for any sign of an answer, he turned away and began the execution procedure....

The relative stillness and quiet was a contrast to the scene on on Oct. 12, 1999, as Nelson grabbed Pamela off the street and threw her into his truck. As Pamela screamed, one of her sisters who saw her abducted began screaming, too. Pamela had been returning to her Kansas City, Kansas, home on inline skates after buying cookies. As he drove off with her, he made a rude gesture to her sister as she screamed. He later raped the fifth-grader and strangled her with a wire.

Pamela’s mom, Cherri West, said she didn’t expect Nelson to express remorse. She said, if anything, she thought he might curse at her and her family as he had done during criminal proceedings. “I wasn’t expecting him to say anything because he never had no remorse,” she said. “I have no remorse for him.”...

A flurry of filings by Nelson’s legal team over several weeks zeroed in on pentobarbital, which depresses the central nervous system and, in high doses, eventually stops the heart. In one filing in early August, Nelson’s attorneys cited an unofficial autopsy on one inmate executed last month, William Purkey, saying it indicated evidence of pulmonary edema in which the lungs fill with fluid and causes a painful sensation akin to drowning.

The federal government has defended the use of pentobarbital, disputing that Purkey’s autopsy proved he suffered. They have also cited Supreme Court ruling precedent that an execution method isn’t necessarily cruel and unusual just because it causes some pain.

In her overturned ruling, U.S. District Judge Tanya Chutkan halted Nelson’s execution early Thursday, saying laws regulating drugs require the prescriptions, even for executions. Within hours, an appellate panel tossed her ruling....

With the execution Wednesday of Lezmond Mitchell — the only Native American on federal death row — the federal government under President Donald Trump registered more executions in 2020 than it had in the previous 56 years combined.

August 28, 2020 in Death Penalty Reforms | Permalink | Comments (1)

Has anyone sentenced to life without parole ever before spoken on final night of major political convention?

The question in the title of this post is prompted, of course, by Alice Marie Johnson having the chance to tell her story during the final night of the Republican National Convention.  I was on the road, so I missed the speech live, but PBS has it available via YouTube at this link.  And here is a round-up of just some media coverage of what seems like a historic speech:

Via BuzzFeed News, "Alice Johnson, Whose Sentence Was Commuted By Trump, Gave An Uplifting Speech About Criminal Justice Reform At The RNC"

Via CNN, "Alice Johnson shares powerful redemption story at RNC"

From The Hill, "Alice Johnson praises Trump for First Step Act, urges compassion for 'forgotten faces'"

Via Yahoo Entertainment, "Former Inmate Alice Johnson, Championed by Kim Kardashian & Freed by Trump, Urges More Change at RNC"

I am often quite discouraged these days about both the state of our nation and the state of our politics.  But here is hoping that we can all find some joy and inspiration in this one story to keep moving (and move faster) on badly needed reform to all our criminal justice systems in incarceration nation.

August 28, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Trump’s failed promise of criminal justice reform gives Biden an opening"

The title of this post is the headline of this new Washington Post commentary authored by Mark Osler.  Here is an excerpt:

As a lifelong Democrat, I found myself in a very unexpected place on Sept. 5, 2018: sitting next to Jared Kushner in the Roosevelt Room of the White House. Ivanka Trump was at the other end of the table, and Kim Kardashian West sat across from me. This was not my normal crowd.
Kushner had called the meeting to discuss reform of the broken federal clemency system, which allows the president to shorten a sentence or mitigate a conviction. New York University professor Rachel Barkow and I had been asked to explain what was wrong and how to fix it.  It’s a short, sad story: The system for evaluating clemency petitions is mired in the bureaucracy and internal conflicts of the Justice Department. As a result, the mercy intended by the Constitution has been in short supply for three decades.
Barkow and I opened the meeting by laying out the problems and offering a solution: the creation of an independent board to evaluate clemency petitions and make recommendations to the president. There was a quick consensus around the table that change was needed. I felt hopeful, largely because we seemed to have Kushner on our side. He was engaged and motivated; the experience of having a parent incarcerated had given him insight into the broader problems we described. Furthermore, the usual institutional opponent to criminal justice reform in any administration — the Justice Department — was out of the way due to the president’s ongoing dispute with then-Attorney General Jeff Sessions....

The Trump administration never did reform the clemency process.  Instead of issuing an executive order to create a formal, bipartisan board, Trump chose to assemble a small team of insiders to funnel cases to him.  The primary recipients of his pardon power have been his personal friends and some right-wing celebrities.  Today more than 13,000 federal clemency petitions sit awaiting action — and Trump pays so little attention to them that he hasn’t even bothered to deny any cases in more than two years.

The First Step Act was not followed by a second or third step, and reform’s fate was sealed when Barr became attorney general. Unlike Sessions, Barr won Trump’s trust, and with that came the return of the Justice Department’s veto power over policy issues. Barr and Trump march to the same “law and order” rhythm — a path inconsistent with any real progressive changes. Of course, Trump has continued to take credit as a criminal justice reformer, long after he stopped reforming anything and headed off in the opposite direction.

Democratic nominee Joe Biden has a political opening here, if he chooses to use it. Back in the 1980s and ’90s he, too, thumped the table for law and order; but he can legitimately claim to have changed his mind and moved away from the dark shadow of senseless retribution and over-incarceration.

More importantly, Biden has a humanity about him that Trump cannot conjure, and that is a plus when the discussion comes to human frailty and punishment in the shadow of George Floyd’s death. Unlike Trump, Biden has the ability to credibly admit his mistakes, commit to implementing specific reforms, and then make those changes once in office. Such honesty, humility and resolve would be a welcome change from the slow, sad slide we have seen since that hopeful day in the Roosevelt Room.

August 28, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, August 27, 2020

An effective (and only partial) look at complicated criminal justice records of Trump and Biden

Newsweek has this effective new piece headlined "Trump and Biden Both Have Complicated Records on Criminal Justice Reform," and here are excerpts:

Despite billing themselves as the best bet voters have for criminal justice reform, neither former Vice President Joe Biden nor President Donald Trump has a strong record to fall back on.

The Republican National Convention kicked off on Monday with Senator Tim Scott and Georgia state Representative Vernon Jones, a Democrat, lauding Trump for the First Step Act, a criminal justice reform bill the president signed in 2018. Trump — who pardoned on Tuesday night Jon Ponder, a former bank robber who started a nonprofit in 2010 to help formerly incarcerated individuals — and other speakers contrasted that accomplishment with Biden's involvement in tough-on-crime legislation....

A bipartisan bill, the First Step Act resulted in the release of 3,100 people from prison in July 2019 as part of the act's "good time credit fix," and an additional 3,000 people were resentenced to shorter prison terms, according to the Brennan Center for Justice.  It's an aspect of the Trump administration's legacy that some experts say should be praised, but it's all Trump has to point to in terms of criminal justice reform legislation.

"Yes, he signed and supported an important piece of legislation, but that seems to be where the story ends," Kara Gotsch, director of strategic initiatives at the Sentencing Project, told Newsweek. "I think a lot of people in my community, after the commutation of Alice Johnson, hoped that it would lead to significant numbers of commutations."

Trump granted Johnson clemency in June 2018 after she served 21 years in prison for a first-time nonviolent drug offense. Two years later, he commuted the sentences of Crystal Munoz, Tynice Hall and Judith Negron, three women who served prison time with Johnson, and on Thursday, she's expected to speak at the GOP convention.

For all the lambasting of Biden's criminal justice record and praise of the First Step Act, Trump's also taken a hard stance in favor of law enforcement, labeled protesters "anarchists" and characterized himself as a "law and order" president. Trump also pushed for the death penalty for the Central Park Five, a group of young men wrongly convicted of a 1989 murder. He supported the same punishment for drug dealers just three months after signing the First Step Act, making it unclear where he truly stands on criminal justice reform....

Trump's sending "mixed signals" to different audiences with regard to criminal justice reform, according to Rachel Barkow, author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration.  While Biden isn't her "dream candidate," he's the "more promising" option, in her opinion, because both his and vice presidential nominee Kamala Harris' recent actions indicate they'll be supportive of such reform. Harris' "trajectory is going in the right direction, and Biden at least is claiming that he is going to support more criminal justice reform efforts," Barkow said.

In the 1980s and 1990s, Biden sponsored and supported laws that created mandatory minimum sentences for certain drug-related crimes and increased funding for states to build prisons.  Two laws, the 1986 Anti-Drug Abuse Act and the 1994 Violent Crime Control and Law Enforcement Act, have gotten the bulk of the attention for the disproportionate impacts on the African American community....

Biden has called his role in passing tough-on-crime legislation a "big mistake," and in June he said concerns about the 1994 crime bill were "legitimate" during a virtual NAACP forum.  But he said people should base their opinion on his current actions and comments. Biden's plan if elected includes increased rehabilitation for formerly incarcerated people, creating a $20 billion grant program for states that eliminate mandatory minimums for nonviolent crimes, decriminalizing the use of marijuana and eliminating sentencing disparities between crack and powder cocaine....

Barkow said she hopes if Biden wins, he appoints a new crop of U.S. attorneys and that people who are appointed to sentencing commissions and federal judgeships are from the public defense and civil liberties sector, because bringing that side of the system into the fold is likely to result in better criminal justice reform.... Although she is confident Biden would be more in favor of criminal justice reform than Trump, Barkow said if Biden doesn't take responsibility for the mistakes he's made in the past and commit to using his clemency powers, it will show there were "no lessons learned."

There is so much more to the criminal justice records of both these men, this story only really scratches the surface (though does so well). I am hopeful that these topics get significant attention in the upcoming debates, in part to get both candidates on the record promising to do more in this arena.

August 27, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

"The Scale of the COVID-19-Related Jail Population Decline"

The title of this post is the title of this new short "evidence brief" from the Vera Institute.  Here is its summary:

From mid-March to mid-April 2020 — the first month of rapid spread of COVID-19 in the United States — there was an unprecedented reduction in the number of people held in local jails.  Analysis conducted by the Vera Institute of Justice (Vera) of the most comprehensive jail data available shows that the number of people in jail in the United States fell by one quarter, mainly over the course of that month.  Jail bookings dropped as people who would otherwise have been arrested stayed home, and police and sheriffs made fewer arrests they deemed unnecessary.

Simultaneously, many judges and prosecutors used their broad discretion to facilitate the release of people they deemed safe, while public defenders filed thousands of motions to secure the release of their clients.  Although some highly visible judges and prosecutors continued to stand in the way of decarceration — even while the deadly virus spread quickly through jails and prisons — the overall impact was a rapid reduction in the sizable population of jailed people whose incarceration had no clear public safety rationale.

But as the United States faces continued outbreaks of COVID-19, it is crucial to recognize that decarceration has still been inadequate, from both a public safety and a public health perspective.  Future COVID-19 responsive policies should focus on facilitating the release of much broader categories of people and avoiding arrests and bookings that would refill jails.  In the immediate term, further reducing jail populations would help to slow or stop the continued spread of the virus inside and outside jail facilities, and it could also help reduce correctional spending as state and local budgets shrink.  In the long-term, this could enable an enduring shift of resources away from law enforcement and punishment and toward public services and responses. Such a policy approach would move the country toward ending both mass incarceration and the social and economic harms it inflicts on poor, Black, and brown communities.

August 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Bureau of Justice Statistics releases report on "Correctional Populations in the United States, 2017-2018"

Though I am sad that data in reports from the Bureau of Justice Statistics is often a bit dated, I am always grateful for the work BJS does to assemble and detail criminal justice data. And I am especially pleased to see this latest BJS report, titled "Correctional Populations in the United States, 2017-2018," in part because it details the continued decline in correctional populations for now more than a decade (which I certainly believe has continued into 2019 and 2020). This BJS webpage provides this context and highlights:

This report is the 23rd in a series that began in 1985. It provides statistics on populations supervised by adult correctional systems in the United States, including persons held in prisons or jails and those supervised in the community on probation or parole. It provides statistics on the size of the correctional populations at year-end 2017 and year-end 2018, and changes in populations over time.

Highlights:

  • The adult correctional-supervision rate (adults supervised per 100,000 adult U.S. residents) decreased 21% from 2008 to 2018, from 3,160 to 2,510 per 100,000 adult U.S. residents.
  • The percentage of adult U.S. residents under correctional supervision was lower in 2018 than at any time since 1992.
  • The adult incarceration rate (adults in prison or jail per 100,000 adult U.S. residents) has declined every year since 2008, and the rate in 2018 was the lowest since 1996.
  • The portion of adult U.S. residents in prison or jails fell 17% from 2008 to 2018.
  • The correctional population declined 2.1% from 2017 to 2018, due to decreases in both the community-supervision (down 2.4%) and incarcerated (down 1.4%) populations.

August 27, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, August 26, 2020

Native American death sentence carried out as feds complete record-setting fourth execution of 2020

As reported in this AP piece, the "only Native American on federal death row was put to death Wednesday, despite objections from many Navajo leaders who had urged President Donald Trump to halt the execution on the grounds it would violate tribal culture and sovereignty." Here is more:

With the execution of Lezmond Mitchell for the grisly slayings of a 9-year-old and her grandmother, the federal government under the pro-death penalty president has now carried out more executions in 2020 than it had in the previous 56 years combined....

Mitchell, 38, and an accomplice were convicted of killing Tiffany Lee and 63-year-old Alyce Slim after the grandmother offered them a lift as they hitchhiked on the Navajo Nation in 2001.  They stabbed Slim 33 times, slit Tiffany’s throat and stoned her to death. They later mutilated both bodies.

A bid by tribal leaders to persuade Trump to commute Mitchell’s sentence to life in prison failed, as did last-minute appeals by his lawyers for a stay.  The first three federal executions in 17 years went ahead in July after similar legal maneuvers failed. Keith Nelson, who was also convicted of killing a child, is slated to die Friday.

“Nearly 19 years after Lezmond Mitchell brutally ended the lives of two people, destroying the lives of many others, justice finally has been served,” Justice Department spokesperson Kerri Kupec said in a statement....

Death-penalty advocates say the Trump administration’s restart of executions is bringing justice — too long delayed — to victims and families.  There are currently 58 men and one woman on federal death row, many of whose executions have been pending for over 20 years....

Prior to this year, the federal government had carried out just three executions since 1963, all of them between 2001 and 2003, according to the Washington, D.C.-based Death Penalty Information Center. Oklahoma City bomber Timothy McVeigh was among them.

The first of the resumed executions was of former white supremacist Daniel Lewis Lee on July 14.  Two others, Wesley Purkey and Dustin Honken, were executed later the same week. The victims of all three also included children.  The executions of Christopher Andre Vialva and William Emmett LeCroy are scheduled for late September.

August 26, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

"Criminal Law Update: A Survey of State Law Changes in 2019"

The title of this post is the title of this notable publication from The Federal Society authored by Robert Alt.  Here is how it gets started:

In 2019, state legislatures across the country modified rules and procedures related to every part of the criminal justice system, from pretrial detention to post-sentence re-entry.  States passed new legislation and amended their criminal codes addressing a range of criminal justice concerns.  A review of the legal landscape shows that states were most willing to adjust their criminal laws related to sentencing, record expungement and offender registries, marijuana legalization, and felon reenfranchisement.  This paper is not intended to serve as an exhaustive list of new criminal justice legislation in 2019, but rather highlights the most common reforms that fall generally among those categories.

As in 2018, criminal justice laws enacted in 2019 did not take a singular approach.  Some states, for example, significantly enhanced penalties for certain offenses, while others reduced sentences and repealed mandatory minimums.  Alaska adopted comprehensive criminal justice legislation that included repealing “catch and release” pretrial protocols, even as New York all but ended its pretrial detention and cash bail system.  Three states revised rules for offender release and re-entry, and two states continued the national trend of restricting civil asset forfeiture and making the process more transparent.  A handful of states amended their treatment of juvenile offenders, and several more stopped suspending driver’s licenses for unpaid fines and court costs.

Support for and opposition to criminal laws and punishments do not tend to break along traditional partisan lines. Although some legislative reforms proved to be politically contentious, including New York’s bail reform and Florida’s new re-enfranchisement requirements, others were largely bipartisan efforts wherein legislatures and governors from both ends of the political spectrum reached tenable compromises. Some legislatures even passed measures unanimously.

August 26, 2020 in Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Highlighting disorder under an administration trying to lay claim to "law and order"

Miriam Aroni Krinsky and Roy L. Austin, Jr. have this notable new Hill commentary headlined "Bad law and failed order." I recommend the piece in full, and here are excerpts:

As the Republican National Convention plays out this week, a public service warning to all Americans: Don’t buy the hype you are hearing when it comes to crime in America....

First, we must level-set.  More than 178, 000 people in the United States have died from COVID-19 in the last nine months, and that number is likely an undercount.  On the other hand, in 2018, the last full year of available data, there were 16,214 homicides in the U.S. — less than 10 percent of the deaths from a virus this president has largely ignored.  In fact, homicide is not even in the top 10 causes of death in America....

The average number of annual homicides under President Obama (15,177) was more than 1,000 fewer than under President Trump (16,754).  At the same time, Trump has overseen a dramatic increase in hate crime.  In Trump’s two years for which data is available, there were 7,175 and 7,120 hate crimes — significantly more than in any year that President Obama was in office.  And police officers have statistically been no safer from felonious death under Trump (50 per year) than under Obama (51).

This administration’s hypocrisy over local rule must also be examined.  President Trump, Attorney General William Barr and their allies regularly attack reform-minded prosecutors and encourage federal intervention.  But these local prosecutors were elected by their communities explicitly because of their commitment to reform the system.  Yet, when it comes to COVID-19, where federal leadership is critical, this administration hypocritically insists on deferring to local rule....

What these reform-minded prosecutors understand is that past “tough on crime” practices didn’t work.  For more than two decades, regardless of what party has held the presidency, homicide numbers have remained at historic lows. Despite annual state and local law enforcement and corrections spending of close to $200 billion, the homicide rate has barely moved and the clearance rate for homicides and other crimes remains pathetically low. The number of people law enforcement officers annually kill — more than 1,000 — also remains stubbornly consistent.

Despite the Trump administration’s attempt to spread fear among suburban voters, we know that we can significantly reduce the footprint of law enforcement while also enhancing community safety and constitutional policing.  In New York City, there were 685,724 police stops in 2011.  From 2014 through 2017, that number was below 50,000, and the number of homicides and violent crimes trended down significantly throughout that period.

While under a federal consent decree, New Orleans had its lowest homicide numbers in decades. While it is too early to determine whether we are seeing any significant uptick in violent crime, the economic consequences of Trump’s failed COVID-19 response, his refusal to address the proliferation of firearms and his encouragement of police violence would be the most likely causes.

Those fighting for dramatic changes to our criminal system recognize that, to truly enhance public safety, we must address underlying societal problems and fortify community trust.  We must treat substance use disorder as the public health issue that it is.  We must ensure people have jobs paying decent wages.  We must reduce homelessness and provide quality, affordable housing.  We must be smarter about education spending and eliminate school police who propel Black and Brown kids into the justice system.  We must stop the disparate searches, arrests, detention, use of force and incarceration of people of color.  And we must not ignore racism in all systems, because only when there is equality and justice will there be safety.

August 26, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"Reflections on the Warren Court's Criminal Justice Legacy, Fifty Years Later: What the Wings of a Butterfly and a Yiddish Proverb Teach Me"

The title of this post is the title of this new paper authored by my colleague Joshua Dressler which is available via SSRN.  Here is its abstract:

I reflect on the criminal justice legacy of the Warren Court, which ended approximately a half-century ago. I ask: How much of the law and values that Earl Warren and his colleagues transmitted to us remain a part of our constitutional fabric today?  Put more bluntly, was the Warren Court successful or a failure in meeting its criminal justice goals?

As I see it, the goal of Earl Warren and his most progressive colleagues during his 15+ years on the high court was to reshape the criminal justice system by placing restrictions on those with the greatest power, primarily the police and prosecutors, and by providing greater rights to the rest of us (particularly the most vulnerable amongst us) when we are confronted by the awesome power of government in our homes, streets, police stations, and courts.

If those were, indeed, the amorphously described criminal justice goals of the Warren Court, and if we are evaluating it by looking at where we are today in regard to those goals, I am forced to conclude that the Warren Court was to a significant extent a failure.  And yet, as the title of this article hopefully suggests, there may be another way to look at the Warren Court’s efforts.  Indeed, I will ultimately conclude that, at least for civil libertarians, we owe a debt to Earl Warren and his Court.

August 26, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Without any dissents, SCOTUS rejects legal claims of Native American scheduled for federal execution today

As reported here by Amy Howe at SCOTUSblog, the "Supreme Court on Tuesday night declined to block the execution, scheduled for Wednesday, of Lezmond Mitchell, the only Native American on federal death row."   Here is more, with links to orders:

The justices, without any noted dissents, denied two emergency requests from Mitchell seeking to postpone the execution.  Mitchell had argued that he should be given the opportunity to interview his jurors about potential bias during deliberations and that the government’s planned lethal-injection protocol violates federal law.

If the execution goes forward, Mitchell will be the fourth federal inmate executed this year after nearly two decades in which the federal government did not carry out the death penalty.  Three additional federal executions are scheduled before the end of September.

Mitchell, a Navajo man, was convicted and sentenced to death in 2003 for the carjacking and stabbing deaths of Alyce Slim and her nine-year-old granddaughter, who were also members of the Navajo Nation.  At Mitchell’s trial, prosecutors told jurors – all but one of whom were white – that, in the Old West, Mitchell “would have been taken out back” and “strung up.”...

Mitchell came to the Supreme Court last week, asking the justices to block his execution and take up the question of whether, in death penalty cases, district courts can bar inmates from interviewing jurors about racial bias during deliberations....

Mitchell filed a separate request on Sunday to block his execution to give the justices time to weigh in on a dispute over the interpretation of the Federal Death Penalty Act, which requires the federal government to carry out executions “in the manner prescribed by the law of the state in which the sentence is imposed.”...

In two orders on Tuesday night, the Supreme Court rejected both of Mitchell’s requests.  No justices publicly dissented, but Justice Sonia Sotomayor attached a short statement arguing that the court should soon resolve the dispute in the lower courts over how to interpret the Federal Death Penalty Act.  Mitchell’s case was not the right vehicle for the court to resolve that dispute, Sotomayor wrote, because the 9th Circuit assumed an interpretation that was favorable to Mitchell but still denied him relief. “But with additional federal executions scheduled in the coming months, the importance of clarifying the FDPA’s meaning remains,” Sotomayor continued. “I believe that this Court should address this issue in an appropriate case.”

A few of many recent prior related posts:

August 26, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 25, 2020

Two great new pieces providing perspectives on prosecutorial perspectives

Two great new press pieces from major outlets provide a great window into the work and thinking of modern prosecutors.  Here are links with headlines and subheadlines:

From the New York Times, "Can Prosecutors Be Taught to Avoid Jail Sentences?: At least 60 district attorneys have come to see incarceration as destructive, racist, expensive and ineffective. But can they persuade their own staffs?"

From Politico, "‘Prosecutors Are Not Exempt from Criticism’: Five Black, female prosecutors offer 11 ideas for how to make their profession part of the solution."

August 25, 2020 in Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Prez Trump grants pardon to Jon Ponder just before his RNC convention speech

As reported in this Fox News piece, "President Trump on Tuesday announced a pardon of Jon Ponder ahead of the convicted bank robber's appearance at the Republican National Convention on Tuesday night."  Here is more:

Ponder, who founded the nonprofit Hope For Prisoners, will be speaking at the convention, along with Richard Beasley, the FBI agent who arrested him, Fox News is told.

Ahead of the appearance, the president announced the pardon in a video.

Here is a link to the video announcing the pardon and providing more background on Jon Ponder, and this JustLeadershipUSA biography details some of what Ponder has been doing in service to criminal justice reform:

Jon D. Ponder is the founder and CEO of HOPE for Prisoners, Inc. In 2017, Jon was appointed by Governor Brian Sandoval to the Nevada Sentencing Commission and to the Nevada Commission on Postsecondary Education. He was appointed to the Governor’s Reentry Taskforce and the US Commission on Civil Rights Nevada State Advisory Committee in 2016. Jon holds a seat on the Executive Committee of RECAP (Rebuilding Every Community Around Peace) with the Las Vegas Metropolitan Police Department.  His responsibilities include oversight of all aspects of the programs and services provided by HOPE for Prisoners, including a comprehensive array of program components designed to assist individuals to successfully reintegrate into society.  He develops and implements strategic planning for the organization and is extremely passionate about the value of mentoring for persons coming out of correctional settings.

Jon was himself formerly incarcerated and has more than twelve years’ experience in providing training for offender populations in correctional settings.  His personal life experiences equip him to provide the guidance, direction and motivation for individuals attempting to navigate the challenges they face during the reintegration process.

August 25, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The RNC Can't Figure Out Where It Stands on Criminal Justice Reform"

The title of this post captures my own thinking about the somewhat confusing messages being delivered so far from the Republic convention (after the Democratic convention, sadly, barely discussed the issue).  The title of this post is also the headline of this effective new Reason piece by C.J. Ciaramella, which includes these passages:

Speakers at the first night of the 2020 Republican National Convention tried to navigate two competing messages on the criminal justice system.  One was that Joe Biden was an architect of mass incarceration and lock-em-up policies, which Donald Trump rightfully rolled back.  The other message was that only Republicans will stand up for police and the law.

Sen. Tim Scott (R–S.C.), the only black Republican in the Senate, assailed Joe Biden for his role in the 1994 crime bill and creating sentencing disparities between crack and powder cocaine. "Trump fixed many of the disparities that Biden created and made our system more fair and just for all Americans," Scott said, referring to the passage of the 2018 FIRST STEP Act.  Georgia Democrat Vernon Jones, venturing into hyperbole, claimed that Trump "ended once and for all the policy of incarceration of black people." (Although the legislation did result in the release of several thousand federal inmates, it did not abolish the federal prison system, Reason regrets to report.)

But at the same time that speakers were lauding Trump for criminal justice reforms that rolled back some of the laws that Biden helped pass, they were making constant references to riots, violent criminals being let loose on the street, and the threat of antifa mobs coming to your suburban neighborhood once the Marxist Democrats defund the police....

Backing the blue has been one of the centerpieces of Trump's "LAW AND ORDER!" reelection campaign.  Trump's campaign released a 2nd term agenda Sunday night, seeking to put to rest questions of what exactly, if anything, the president and Republicans stand for.  The list of about 50 bullet points includes five under the heading "Defend Our Police."

  • Fully Fund and Hire More Police and Law Enforcement Officers
  • Increase Criminal Penalties for Assaults on Law Enforcement Officers
  • Prosecute Drive-By Shootings as Acts of Domestic Terrorism
  • Bring Violent Extremist Groups Like ANTIFA to Justice
  • End Cashless Bail and Keep Dangerous Criminals Locked Up until Trial

The Republican Party decided to forgo releasing a party platform this year, instead simply saying it supports Trump's agenda.  So this thin gruel, along with speeches at this week's RNC, are what constitute the Republican positions on criminal justice....

Although it will probably come to nothing but more culture war fodder, the inclusion of a pro-cash bail item in Trump's 2nd term agenda is a clearer sign of the Trump administration's priorities on criminal justice than a bill signed two years ago.

August 25, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Spotlighting the still sorry state of federal prisons six months into a COVID pandemic

It has now be almost a full six months since my first post here flagging concerns about the intersection of incarceration and coronavirus, and since then I have covered this challenging story in dozens more posts. But the Washington Post has this notable new piece highlights that prison nation still has big COVID problems, and that matters seem to be even worse in federal prisons than in state systems. The piece is headlined "Prisoners and guards agree about federal coronavirus response: ‘We do not feel safe’," and here are excerpts:

Kareen “Troy” Troitino spent all of July working in a prison medical facility just as the coronavirus was surging through Miami’s Federal Correctional Institution, where the number of confirmed cases ballooned from a handful of prisoners to nearly 100 in a matter of days.  When he returned to work at FCI Miami in August, he was caught off guard when the prisoners welcomed him back with a laudatory uproar he said “sounded like the Super Bowl.”

Word had circulated among prisoners in the 1,000-person low-security facility that Troitino, a corrections officer and union president, was telling reporters, lawmakers and managers that despite assurances, the Bureau of Prisons’ response to the coronavirus pandemic was endangering the lives of federal employees and prisoners alike.  Troitino, who spoke to The Washington Post as a representative of his union, acknowledged that prisoners and guards don’t always find themselves on the same team; but in a pandemic, everyone’s fates are intertwined.  “All of us are trying to survive,” Troitino said.  “Your health affects me, and vice versa. Inmates and staff, we do not feel safe.”

Troitino is among the federal workers suing the government for hazard pay over what they say are risky conditions they’re forced to work under during the pandemic — but he’s hardly a disgruntled worker.  When the BOP announced Aug. 5 it had moved into Phase 9 of its covid-19 action plan, prisoners and their advocates panned the news as the bureau’s attempt to create the impression that the virus is under control in facilities while papering over a deepening health and safety crisis.

BOP Director Michael Carvajal has dismissed scrutiny of the bureau as “misinformation.” During a June Senate Judiciary Committee hearing on covid-19 best practices for prisons and jails, Carvajal testified that the bureau was well-prepared and that the Centers for Disease Control and Prevention had praised the bureau after evaluating unspecified facilities in the early months of the pandemic.  As of June 1, Carvajal said 1,650 federal inmates and 171 bureau staff had tested positive.  Less than 12 weeks later, those numbers grew to 11,953 prisoners and 1,436 staff, with more than 120 combined deaths, according to UCLA’s Covid-19 Behind Bars Data Project.

Covid-19 cases are proportionally higher and have spread faster in prisons than in the outside population, said Brendan Saloner, an associate professor at Johns Hopkins Bloomberg School of Public Health who is studying the issue. Saloner told The Post federal public defenders contacted his team with troubling details from clients. “Their contention is that it’s worse in the BOP than in the state prisons,” he said....

Interviews with a dozen federal prison employees, prisoners, lawyers and health and legal experts who monitor correctional facilities, as well as reviews of lawsuits and petitions filed by prisoners and collected from the UCLA data project, show the ways by which the pandemic has exacerbated existing problems in federal prisons; they range from overcrowding and staff shortages to a lack of transparency around policies for personal protective equipment (PPE) and testing.

“It’s a complete disaster,” said Rob Norcross, an inmate at the minimum-security satellite camp at FCI Jesup in Georgia. The bureau’s stated guidelines about sanitization and social distancing don’t comport with reality, Norcross said: Prison camp inmates are barred from using hand sanitizer, lack cleaning supplies and have nowhere they can move to to create space....

Norcross’s complaints mirror those in a July report by the DOJ’s Office of Inspector General about conditions at a federal prison in Lompoc, Calif.: The OIG reported several issues, including a shortage of medical staffers to address prisoner health concerns and instances where prisoners who clearly exhibited covid-19 symptoms were not tested.  The areas where the Lompoc facility scored the lowest were related to adequate PPE supply for staff and prisoners, and adequate soap or hand sanitizer for prisoners.

Sen. Elizabeth Warren (D-Mass.) ... sent Carvajal letters demanding answers on testing and transparency. Warren and several congressional Democrats introduced a bill Aug. 6 that would require federal and local corrections facilities to collect and report comprehensive data on covid-19 infections and deaths. “Covid-19 is out of control in prisons and jails across the country — and the Trump Administration has failed to effectively manage this pandemic and protect the health and safety of incarcerated people, correctional staff, and the general public,” Warren said in the past week in a statement to The Post.

UCLA Law’s Sharon Dolovich, who leads the Covid-19 Behind Bars Data Project, echoed Warren’s criticism of the bureau, noting the data it does publish on coronavirus cases and deaths is non-comprehensive and opaque.  “The culture of secrecy that’s been allowed to develop in the nation’s prisons and jails over the past 40 years is antithetical to these institutions’ status in a democratic society,” she said.  “We have government officials who act as if this is their private information.”

August 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Monday, August 24, 2020

"Climate Change and the Criminal Justice System"

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

The past decade has been the warmest decade in history. But while there has been a great deal of attention paid to issues of infrastructure sustainability, less attention has been focused on the impact of climate change on our criminal justice system.  This paper identifies how we can anticipate climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.  This article first examines three ways climate change is challenging our criminal justice system — from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation.  Drawing in part on lessons from the response to the COVID-19 pandemic, this article makes ten recommendations on how such challenges can be met.

August 24, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week

As partially covered here and here, there was considerable media attention as well as considerable last-minute litigation as the US Justice Department moved forward with plans for, and ultimately completed, three federal executions in a single week in July.  Now another federal capital week looms, as federal officials are scheduled to execute by lethal injection Lezmond Mitchell on Wednesday, August 26 and Keith Dwayne Nelson on Friday, August 28 (and the feds have yet another double-death week planned for September with William LeCroy scheduled for execution on September 22 and Christopher Vialva scheduled for execution on September 24).  But, as the title of this post suggests, I sense this second round of federal executions is getting a lot less attention than even the usual state execution typically does.

Notably, Lezmond Mitchell has some pending claims before the Supreme Court (SCOTUSblog coverage here), and the fact that he is the only Native American on federal death row has generated some media coverage as highlighted by these stories:

But even with these pieces and some additional critical commentary, it still seems like the planned federal execution of Lezmond Mitchell is getting less attention than I might have expected.  Even more remarkable, I cannot seem to find a single detailed press piece written recently about Keith Dwayne Nelson and his pending federal execution.  I surmise that Nelson does not have any legal appeals pending, but that fact alone would be remarkable (and press-worthy) if anyone were closely paying attention.

It is not hard to understand why these matters are not getting much attention.  An enduring pandemic, an election season, back-to-school challenges, wildfires and hurricanes, protests and so much else all make for much better "copy" for the media.  Moreover, as suggested in this post, there may be less legal drama around these cases after SCOTUS made clear last month that it would be eager to lift lower court stays to enable executions to move forward on the schedule set by Attorney General Barr.  Still, I had to remark on how remarkable it seems to me that this week's executions now seem so likely to go forward with relatively so little attention.

A few of many recent prior related posts:

UPDATE: I failed to see this Friday afternoon press report on noting that Nelson's lawyers have joined in filings about the federal government's executions methods, which is headlined "Lawyers: Autopsy suggests inmate suffered during execution." Here are the basics:

An inmate suffered “extreme pain" as he received a dose of pentobarbital during just the second federal execution following a 17-year lag, according to court filings by lawyers representing one of the inmates scheduled to be executed next.  The claim Wesley Purkey may have felt a sensation akin to drowning while immobilized but conscious is disputed by Department of Justice attorneys. They insist the first three lethal injections since 2003 were carried out without a hitch last month at the federal prison in Terre Haute, Indiana.

This month's filings were part of motions to halt the execution of Keith Nelson, convicted in the 1999 rape and strangulation of 10-year-old Pamela Butler. Prosecutors said he pulled her into his truck as she skated on rollerblades back to her Kansas home after buying herself cookies.  Nelson’s execution is set for Aug. 28.  The execution of Lezmond Mitchell, the only Native American on federal death row, is scheduled for Aug. 26. His lawyers have made similar arguments.

August 24, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, August 23, 2020

"Incarceration and the Law: Cases and Materials (Table of Contents and Ch. 1 Excerpt)"

The title of this post is the title of this SSRN posting with a part of the latest new edition of the casebook Incarceration and the Law: Cases and Materials.  Here is the abstract:

This posts a table of contents and much of the first chapter to a fully overhauled, updated, and expanded edition of the leading case book on incarceration.  The case book examines the complex legal regime that defines prisoners’ rights. Mass incarceration in America creates a host of controversies at the crossroads of constitutional liberty, legislation, public policy, and prison management.  It considers those issues from diverse perspectives by presenting an array of materials: Supreme Court and leading lower court caselaw, statutes, litigation materials, professional standards, academic commentary, prisoner writing, and more.  (There is also an associated website, http://incarcerationlaw.com, which offers additional open sources, supplementing the book for those who own it and providing a freestanding repository of materials for those who do not.)

Chapter 1 provides background on American jails and prisons (What’s the difference between a jail and a prison?  What is incarceration supposed to accomplish?  How do prison abolitionists conceptualize and justify their goals?  How did American incarceration develop?)  It provides longitudinal and contemporary statistics.  Finally, it offers narrative and case law background on the development of the modern conception of prisoners’ rights.

August 23, 2020 in Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of the morning of Sunday, August 23, this UCLA accounting had tabulated 858 "Confirmed Deaths (Residents)." 

This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020.  According to DPIC data, there were a total of 839 executions from the start of 2001 through today.

Of course, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The majority of prisoners to die of COVID were not responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few prior posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  Another such offender died just last week according to this BOP press release: Luis A. Velez contracted COVID in FCI Coleman this summer and died on August 18; he was only 58-year-old and had been in federal prison for five years (of a 13-year sentence) after his conviction of possession with intent to distribute meth.

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The UCLA spreadsheet currently reports "only" 72 "Confirmed Deaths (Staff).  I am pleasantly surprised that this number is not bigger, but I will be ever troubled by the thought it could have been much lower along with the prisoner death number if more aggressive depopulation efforts were taken to more the most vulnerable and least risky offenders out of the super-spreader environment that prisons represent.

A few of many prior related posts:

August 23, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (9)

Saturday, August 22, 2020

"Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform"

The title of this post is the title of this new National Review commentary authored by Isaac Schorr.  Here are excerpts:

Civil-forfeiture reform is the principal focus of the FAIR Act, and for good reason: The process is broken.  Under this form of forfeiture, the government brings charges against the property itself without leveling any against the property owner.  On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough.  It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course.

Once proceedings have been initiated, the government needs to prove, by a preponderance of the evidence (51 percent sure), only that the property is subject to forfeiture.  The burden of proof then belongs — in most states — to the owners of the property, who must show that they were neither involved in any criminal activity nor aware that their property was being used for criminal purposes, or that, if it were, then they took steps to end that criminal activity.  Worst of all, property owners are not even necessarily entitled to legal representation. Whether they are granted this basic right is left to the discretion of the presiding judge.

Why has civil-asset forfeiture, which flies in the face of American expectations of due process and the presumption of innocence, been allowed to persist in its current form? It’s all about the Benjamins.  The federal government takes in net revenues exceeding $1 billion annually from asset forfeiture, and states share in the cash cow through “equitable sharing.”  This practice, which sounds innocent enough, provides local authorities with perverse incentives.  Per the Institute for Justice, equitable sharing allows law enforcement to “bypass state laws that limit civil forfeiture.  By collaborating with a federal agency, they can move to forfeit property under federal law and take up to 80 percent of what the property is worth,” which gives them “a direct financial stake in forfeiture encourag[ing] profiteering and not the pursuit of justice.”  What police department would not take advantage of such a profitable opportunity, particularly when those profits are not subject to the same oversight as taxpayer dollars?

The problems with civil-asset forfeiture are many; the FAIR Act addresses nearly all of them.  It would raise the evidentiary standards that the government needs to meet to the “clear and convincing” level.  It would place the burden of proof on the government to show a property owner’s knowledge of criminal activity rather than asking property owners to make the case for their innocence.  It would guarantee property owners the right to legal representation.  Perhaps most important, it would end equitable sharing, incentivizing police departments to stop spending their time pursuing frivolous forfeiture claims.  The act’s changes to the reporting structure are also important.  The Justice Department does not currently provide a public breakdown of how much of their annual seizures are criminal, administrative, and civil forfeiture, respectively.  The FAIR Act would mandate such a breakdown....

The FAIR Act has been endorsed by the Heritage Foundation and American Civil Liberties Union and is cosponsored by legislators as liberal as 2016 Bernie Sanders backer Tulsi Gabbard and as conservative as Freedom Caucus member Paul Gosar.  A functioning Congress acting in the best interest of the American people would take notice of this broad consensus and act swiftly to pass this piece of commonsense legislation.

August 22, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal

Unnamed-2As reported in this CBS News piece, headlined "Lori Loughlin gets 2 months in prison in college admissions scandal. Her husband Mossimo Giannulli will serve 5 months," a high-profile (but low-drama) sentencing took place in federal court yesterday.  Here are the basics:

Actress Lori Loughlin will serve two months in prison and her husband, fashion designer Mossimo Giannulli, will serve five months after the couple pleaded guilty to conspiracy charges in the college admissions scandal. A federal judge on Friday accepted plea deals from the famous couple in a video sentencing hearing.

After initially vowing to fight the charges, Loughlin and Giannulli reversed course after a judge denied their motion to dismiss the case in May. Prosecutors said the couple paid $500,000 to secure their daughters' admission to the University of Southern California by masquerading them as fake athletic recruits.

"I made an awful decision. I went along with a plan to give my daughters an unfair advantage in the college admissions process. In doing so, I ignored my intuition and allowed myself to be swayed from my moral compass," Loughlin said in the video call.

Loughlin, 56, will also pay a $150,000 fine, serve 100 hours of community service, and be under supervised release for two years. Giannulli, 57, is required to pay a fine of $250,000, serve 250 hours of community service, and serve two years of supervised release.

Earlier in the day, Giannulli apologized for the harm his decisions caused his family. "I'm ready to accept the consequences and move forward with the lessons I've learned from this experience," he said. Prior to rendering the sentence, U.S. District Court Judge Nathaniel Gorton ripped into Giannulli for committing a "crime motivated by hubris" that is "defined by wanton arrogance and excessive pride."

In addition to really liking the aesthetic of this "courtroom sketch" of this video sentencing, I reprinted the picture here in order to wonder aloud whether the US Sentencing Commission is keeping track of which sentencings are taking place via video these days and which ones are taking place in person.  Because six months into this pandemic the USSC still has not even reported how many sentencings are taking place, I am not especially optimistic the USSC is collecting, or will anytime soon be reporting, special granular data on COVID-era sentencing realities.  But my hope for the USSC springs eternal.

A few prior posts focused on these defendants:

A few of many prior posts on other defendants in college admissions scandal:

August 22, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (5)