Tuesday, February 23, 2021

Lots of good criminal justice reads from CCRC, Law360, and Reason

A full in-box and some surfing produced this fulsome reading list from a few sources chock full of pieces I recommend checking out:

From CCRC, "After a haul of record relief reforms in 2020, more states launch clean slate campaigns"

From CCRC, "Study: Texas diversion provides dramatic benefits for people facing their first felony

From CCRC, "A Plan to Restructure (and Revive) Pardoning After Trump"

From Law360, "Goodwin Wins Freedom For Cannabis Offender Serving Life"

From Law360, "Biden's Science Adviser Pick Could Advance Justice Reforms"

From Law360, "Public Defenders Speak Out About The Tolls Of COVID-19"

From Reason, "Civil Commitment of Sex Offenders Pretends Prisoners Are Patients"

From Reason, "Biden Says Drug Users Shouldn't Be Jailed but Won't Do Anything To Stop It"

From Reason, "Trump's Messy Pardon Spree Left Too Many Behind. Biden Must Do Better."

February 23, 2021 in Recommended reading | Permalink | Comments (0)

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

February 23, 2021 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Tax Administration and Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated"

The title of this post is the title of this notable and timely new article authored by Leslie Book now available via SSRN.  (Among other virtues, this piece provides yet another example of how all areas of law have something to do with sentencing and corrections.)  Here is its abstract:

In the midst of a devastating pandemic that would sicken millions, kill hundreds of thousands, and cause widespread financial distress, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. CARES provided for the IRS to deliver up to $1,200 for adults and $500 for dependent children.  It was ostensibly structured as a refundable credit to be claimed on a 2020 tax return, but with a twist.  The statute authorized the IRS to pay it in advance, even to those who did not have a tax return filing obligation, and to do so as “rapidly as possible.”  While there were some problems, the IRS generally did remarkably well, and within six months it had delivered about 160 million payments totaling over $270 billion.

This Essay addresses one of those exceptional problems: it involves the IRS’s unexplained change in position on the eligibility of those incarcerated in our nation’s federal, state, and local prisons and jails.  At first, the incarcerated, just like other Americans suffering the effects of the pandemic, received the money that they were entitled to receive under the CARES legislation.  That changed.  In early May of 2020, the IRS announced on its web page that those who were incarcerated were not eligible for immediate cash benefits, worked with prison officials to claw back payments it had made, and stopped in their tracks hundreds of thousands of payments that it had not yet made.  By October, the government faced a complete rebuke of its policy in Scholl v Mnuchin, a class action suit that held that the IRS’s actions were contrary to law and arbitrary and capricious under the Administrative Procedure Act.

By looking at the IRS actions that led to Scholl v Mnuchin, this Essay explores the relationship of tax administration and racial justice.  It reveals how tax administration can normalize and reinforce patterns of racial inequality through the presence of racialized administrative burdens.  Finally, this Essay then considers how the IRS’s actions with respect to restricting payments to the incarcerated population can offer lessons to minimize the risk that future IRS actions will harm people of color, especially given the IRS’s role in delivering benefits.

February 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, February 22, 2021

"COVID-19 Cases Among Employees of U.S. Federal and State Prisons"

The title of this post is the title of this notabel new research published in the American Journal of Preventive Medicine.  Here is its abstract:

Introduction

Prior research has found coronavirus disease 2019 (COVID-19) cases to be disproportionately prevalent among U.S. prisoners.  Like prisoners, prison staff experience ventilation and social distancing hazards and may have limited access to testing, paid sick leave, personal protective equipment, and other workplace protections.  Yet, systematic case surveillance among prison staff remains unexplored.  The objective of this study is to document trends in COVID-19 cases among U.S. correctional staff relative to prisoners and the U.S. population.

Methods

Reports of COVID-19 cases among prisoners and staff were collected from state Departments of Corrections and the federal Bureau of Prisons from March 31, 2020 to November 4, 2020. In November 2020, this series of aggregated case records was linked to population estimates to calculate COVID-19 period prevalence among prison staff and residents with comparison to U.S. population trends.

Results

Within the prison environment, COVID-19 case burden was initially higher among staff than prisoners in 89% of jurisdictions.  Case prevalence escalated more quickly among prisoners but has remained persistently high among staff. By November 4, 2020, COVID-19 was 3.2 times more prevalent among prison staff than the U.S. population.

Conclusions

Prison staff experienced substantially higher COVID-19 case prevalence than the U.S. population overall.  Across prison staff and resident populations, cases were rapidly rising in November 2020, indicating poor outbreak containment within the prison environment.  An Emergency Temporary Standard, issued by federal and state Occupational Safety and Health Administrations, and priority vaccination are urgently needed to reduce COVID-19 occupational risk.  Reduced occupational transmission of COVID-19 will benefit workers, incarcerated people, and community members alike.

February 22, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Notable quotables on criminal justice issues from AG-nominee Merrick Garland during his confirmation hearing

This new Reuters piece provides some choice quotes from U.S. Attorney General Nominee Garland on criminal justice policies during his Senate confirmation hearing today. I sense advocates of criminal justice reform will be pleased with these comments:

DEATH PENALTY

Garland told Congress he used to support the death penalty, including the execution of Oklahoma City bomber Timothy McVeigh, a case he prosecuted.  He said his views have evolved due to concerns about executing innocent people and its disparate impact on communities of color.

“I have had a great pause about the death penalty.  I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise,” he said. “The data is clear that it has an enormously disparate impact on Black Americans and members of communities of color.”

MARIJUANA PROSECUTIONS

Garland revealed he will not seek to prioritize marijuana possession prosecutions. “We can focus our attention on violent crimes and other crimes that put great danger in our society, and not allocate our resources to some things like marijuana possession.”

ON SENTENCING REFORM

“We should do as, as President Biden has suggested, seek the elimination of mandatory minimum.  So that we once again give authority to district judges and trial judges to make determinations based on all of the sentencing factors that judges normally apply.”

“We don’t have to seek highest possible offense with the highest possible sentence. ... Legislatively, we should look at equalizing ... what’s known as the crack powder ratio, which has had an enormously disproportionate impact on communities of color.”

This CNN article about the hearings suggests that Garland is on his way to being confirmed as the next U.S. Attorney General, and it will be interesting to see just how he goes about operationalizing these sentiments though DOJ's work and through advocacy to Congress.

February 22, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)

"Teaching Drugs: Incorporating Drug Policy into Law School Curriculum (2020-21 Curriculum Survey Update)"

The title of this post is the title of this great new updated report authored by multiple researchers with The Ohio State University's Drug Enforcement and Policy Center (DEPC) now available via SSRN.  This document is an updated version of a great prior report with the same title, and both reports are the product of the collective great work of many DEPC folks with input from many legal academics and staff. Here is the abstract for this latest version of this report:

Despite the significant impact of laws and policies surrounding controlled substances, few classes in the typical law school curriculum focus on either basic legal doctrines or broader scholarship in this field.  This gap in law school curricula is especially problematic given the shifts in the landscapes of legalized cannabis and hemp, as well as the range of legal and policy responses to the recent opioid crisis.  To continue our efforts to better understand how law schools currently approach these issues and to identify how drug policy and law could be better incorporated into law school curricula, we conducted a third survey of all accredited law schools in the U.S.  The 2020-21 survey followed two previous annual surveys and a workshop of legal scholars who work in this space.  The surveys and 2019 workshop were designed to identify law school courses currently taught and the primary obstacles to teaching this subject matter.  The results show that the vast majority of law schools do not teach courses touching on drugs or the evolving legal structures around cannabis, and this is true even for law schools located in states with legalized cannabis markets.

February 22, 2021 in Drug Offense Sentencing, Recommended reading | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

Sunday, February 21, 2021

Valuable accountings of crime trends present and past

My morning surfing led me to two notable new pieces with oceans of interesting information about crime and all the debatbale accounts for why it has gone up and down in the United States. Here are links and short excerpts from lengthy pieces which both merit a full read:

"What Drove the Historically Large Murder Spike in 2020?  The pandemic, police violence, and more guns all contributed to an unprecedented rise in murders across the United States" by Rob Arthur and Jeff Asher at The Intercpt.  An excerpt:

Any explanation for the national spike in homicides in 2020 needs to account for why most U.S. cities saw an increase, and the available evidence suggests that we should avoid simplistic or local explanations to explain what was almost certainly a complex national phenomena. Murders were up at least 15 percent through September in cities of every population group, according to the FBI’s data, and the change in murders was larger in towns with under 10,000 people (up 31 percent) than in cities with over 1 million people (up 29 percent). Murders rose dramatically in big cities like New York and Chicago, but smaller cities like Lubbock, Texas, and Shreveport, Louisiana, also recorded their highest murder counts in decades.

The available evidence suggests that we should avoid simplistic or local explanations to explain what was almost certainly a complex national phenomena.

Identifying the change in the murder rate is relatively easy compared to figuring out why the increase occurred. The data suggests that 2020’s murder increase can best be thought about as three separate rises.  A deeper dive into where and when murder increased shows a number of contributing factors: a challenge to police legitimacy and the strain of the pandemic, exacerbated by a sudden surge in the use of firearms in several cities.

"The Great American Mystery Story: Why Did Crime Decline?  To stop the COVID crime wave, we must understand why crime declines: 25 explanations for the Great American Crime Decline and what it means for today" by John Roman at Substack:

25 Reasons Why Crime Declined in America

So now, finally, we have arrived at the point where I can describe the most important theories about why crime declined.  This list is a little bit of a labor of love in that I have been curating it for twenty years.  I didn’t offer any judgments about the relative merits of the Zimring claim that changes in police practices explain the crime decline or the Levitt claim that it is the sheer number of police that matter.  In fact, I think both theories have substantial merit.

And so to do all of the other items on this list.  For each, I have provided a link to a paper that rigorously makes a compelling claim for the idea.  In fact, having a list of 25 explanations for the crime decline was completely arbitrary — I could have added at least a dozen more (and in fact my list here is more like 35 theories since I have grouped some similar ideas and snuck in a few extra).

So, without further ado, here is the list.  The first bunch of causal mechanisms for the crime decline has been explicitly linked by researchers to the crime decline and the link makes that connection.  The rest of the ideas on the list are mechanisms that mediate criminal behavior.  I am linking these mechanisms to the crime decline because changes in the extensive margin (how many people experience the proposed mechanism) are large and inclusive and changes and change at the same time as the crime decline.  I add a sentence for the mechanisms that aren’t obvious, but each is worthy of a book-length treatment.  Graduate students: all of these are testable hypotheses.  Have at it.

As an appetite whetter from this second piece, consider how the list of 25 explanations closes:

20.  Widespread use of medication (Ritalin, anti-anxiety, anti-psychotic, anti-depressant)

21.  In-home entertainment (internet, video games, pornography, cable)

22.  Under-reporting as crime moves online

23.  Less cash in circulation

24.  Obesity and disability

25.  Air conditioning.

February 21, 2021 in National and State Crime Data | Permalink | Comments (0)

"Sex Offenders and the Free Exercise of Religion"

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

In a variety of ways, sex offenders in the United States find themselves in a difficult position.  One of the lesser-known ways relates to the free exercise of religion.  Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present).  Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether.  And this hardship has a bit of irony in it too.  Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.

This simple problem has real scope — tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life.  Moreover, these prohibitions are often vague and overbroad — and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them.  But this ends up creating a kind of licensing scheme, whereby low-level government officials make — on their own, without any formal criteria — ad-hoc and practically unreviewable decisions about who gets to go to church and under what conditions.  Risks of selective enforcement, discrimination, and abuse are obvious.

These rules have come into being as if concerns about the free exercise of religion have no weight at all.  But this is not the case.  And, in fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws.  Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance.  There are probably some people who pose such a threat to children that they should be kept away from churches.  Courts will have to answer tricky questions — who should be barred, who should decide who is barred, and on what criteria? — that require nuanced and elaborate answers.  Yet informed by analogies from other areas of law (like freedom of speech) where courts have wrestled with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.

February 21, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (1)

Saturday, February 20, 2021

"Does Forfeiture Work? Evidence from the States"

The title of this post is the title of this notable new report from the Institute for Justice and authored by Brian Kelly.  Here is the report's executive summary:

This study provides the first multistate analysis of whether forfeiture works to fight crime or is, instead, used primarily to generate revenue.  These competing claims lie at the heart of the policy debate over forfeiture, a legal tool that allows law enforcement agencies to seize and permanently keep people’s cars, cash and even homes if they suspect the property is connected to criminal activity.  Typically, any proceeds from the property go to law enforcement coffers. Critics charge that this creates an improper incentive for police and prosecutors to pursue forfeiture revenue instead of justice, especially under civil forfeiture laws that do not require a conviction or even criminal charges to forfeit property.  Law enforcement and other proponents counter that forfeiture is an essential crime-fighting tool and that forfeiture proceeds can help law enforcement fight more crime.

To test these claims, this study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively — Arizona, Hawaii, Iowa, Michigan and Minnesota — as well as detailed state and local crime, drug use and economic data.  The study examines forfeitures under state law alone as well as those conducted in concert with the federal government.

Results show:

  • More forfeiture proceeds do not help police solve more crimes — and they may, perversely, make police less effective at solving violent crimes.
  • More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade — and the reduction of drug use — as a primary purpose of forfeiture.
  • When local budgets are squeezed, police respond by increasing their reliance on forfeiture.  A one percentage point increase in unemployment — a common measure of economic health — was associated with an 11% to 12% increase in forfeiture activity.

In other words, this study finds no material support for the claims that forfeiture fights crime, either by enabling police to solve more crimes or by reducing drug use.  It does, however, find economic conditions have a large and statistically significant effect on forfeiture activity, suggesting that at least some forfeiture activity is motivated by a desire for revenue.

These results, like those from earlier studies, are particularly salient now, when local government budgets are suffering due to the COVID-19 pandemic.  The data suggest that during economic times like these police may pursue more forfeiture.

This report adds to mounting evidence that forfeiture fails to serve the public good, all while violating basic rights to property and due process, thus demonstrating the pressing need for forfeiture reform.

February 20, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Catching up on a week of criminal justice reads

A busy work week with lots of student conferences, Zoom meetings aplenty, and a great OSJCL symposium got me behind on interesting reading (and blogging) on a variety of criminal justice fronts.  So, catching up, here are some recent pieces catching my eye:

From The Atlantic, "Anissa Jordan Took Part in a Robbery. She Went to Prison for Murder. The legal doctrine that allows people to be prosecuted for murder even if they didn’t kill anyone has fallen out of favor across the globe. In America, it remains common."

From Courthouse News Service, "House Examines Supreme Court Shadow Docket"

From Fox17, "Michigan's recidivism rate continues to decline, MDOC says"

From the Los Angeles Times, "Years ago, I applauded the 40-year sentence for a shooter at a party. Now I’m rethinking things"

From National Geographic(!), "Sentenced to death, but innocent: These are stories of justice gone wrong. Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them."

From the New York Review of Books, "America’s Hidden Gulag: The nationwide federal detention of immigrants in county jails perpetuates a profit-driven system of mass incarceration."

From NBC News, "Did Illinois get bail reform right? Criminal justice advocates are optimistic: 'We live in a system today where we use money as the sole determining factor in determining whether somebody is going to be in jail or out of jail,' one justice advocate said."

From Reuters, "Biden's attorney general pick Garland to prioritize civil rights, combating domestic terror"

February 20, 2021 in Recommended reading | Permalink | Comments (0)

Friday, February 19, 2021

"Should Public Defenders Be Tweeting?"

The question in the title of this post is the headline of this notable new Vice article.  I recommend the lengthy piece in full, and I suspect more than a few readers might have more than a few thoughts on this important modern-day topic.  Here are just a few excerpts from a piece with lots of thought-provoking elements:

Public defenders had blogged about their work as long as a decade ago, and tweeting about arraignments wasn’t new, but [Scott] Hechinger and others in New York’s PD scene are responsible for popularizing the trend.  As it’s grown, however, criminal justice reform advocates and formerly incarcerated people have started to argue that these posts can put clients at risk of retaliation from judges and prosecutors, violate their privacy, and present ethical quandaries for public defenders talking so openly about their work on Twitter.  The optics of white public defenders gaining likes or retweets on stories of Black and brown suffering has also been called into question.  As advocacy efforts morph from live-tweets to slick video productions, and gain traction with a public increasingly likely to support justice reform, the question has become: who should be telling the story?...

They are a powerful voice in the justice system, but one fear for public defenders and defendants alike is that the judge, prosecutor, or parole officer will retaliate against tweets that are critical of their actions, said Qiana Johnson, executive director of Life After Release, a program that assists people with re-entry. Even those who have already served a sentence are often constrained from speaking out by probation or parole conditions. “Their advocacy could cost them,” she said....

There have been complaints filed against defense attorneys over their use of social media in recent years, though those are not public, said Ellen C. Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University, who studies ethics in law.  Prior to 2014, a Virginia attorney was disciplined for blogging about the cases he had won as a defense attorney, an act that constituted self-advertising, the state bar found, according to the 2013 law letter written by Nicole Hyland as part of an ethics committee.  An Illinois public defender was fired from her job and suspended by the bar for 60 days after posting client details in 2007 and 2008 on Facebook, including a picture of her client’s leopard-skin underwear — evidence in a trial.  Others have been disciplined for disparaging clients or judges.  In March 2018, the American Bar Association issued a formal opinion limiting the ability of attorneys to blog or comment publicly about their cases.

Many on PD Twitter have also been called out for “trading on the suffering of Black and brown people,” said [Nicole] Smith Futrell, cautioning that “just because you’re a public defender representing someone who’s experienced [the system,] it doesn’t mean that you’ve experienced that thing that you now get to tell.”  As defense attorneys push advocacy in new directions and accept media opportunities, they are encountering many of the ethical questions journalists have long wrestled with: does the individual or the larger narrative take precedence?  When does “storytelling” become exploitative?...

Brendon Woods, the chief defender in Oakland’s Alameda County Public Defender’s Office, has been in the field since the late 90s when there were a few shared desktop computers available for public defenders to use. He sees plenty of law enforcement outfits on Twitter and said the voices of public defenders have been game-changing. They have power, he said, but that power must be used with care.  “Our clients, they’ve been dehumanized by the system so much, you don’t need to have it happen from people who are tweeting or posting stories on Facebook,” he said, “and without any thought or strategy being put into them or why they're doing it.”

February 19, 2021 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

Thursday, February 18, 2021

ACLU writes to AG-nominee Merrick Garland urging action on "five critical issues"

The ACLU today released this notable seven-page letter directed to Attorney General-Designate Merrick Garland. Here is how it gets started:

Congratulations on your nomination to lead the U.S. Department of Justice (DOJ).  For nearly 100 years, the ACLU has been our nation’s guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. Your nomination comes at a moment when America faces an overdue reckoning with racial injustice that can start to be addressed with policies such as adopting a federal use-of-force standard, decriminalizing marijuana, ending mandatory minimum sentencing, and abolishing the death penalty.  We applaud President Biden’s pledge to heal our country and reform our criminal legal system, and we look forward to working with him and DOJ to advance our shared goals.

At your confirmation hearing before the Senate Judiciary Committee on February 22, we urge you to make clear that under your leadership DOJ will adopt policies to build a more racially just criminal legal system.  In addition to matters we anticipate that you already plan to address, we urge you to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.

February 18, 2021 in Who Sentences | Permalink | Comments (3)

"Rigging the jury: How each state reduces jury diversity by excluding people with criminal records"

The title of this post is the title of this notable new report from the folks at Prison Policy Initiative. Here are excerpts from the report's first part:

In courthouses throughout the country, defendants are routinely denied the promise of a "jury of their peers," thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted (or sometimes simply accused) of crimes from serving on juries. These laws bar more than twenty million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices exist in every state and often ban people from jury service forever....

As we have chronicled extensively, the criminal justice system disproportionately targets Black people and Latinx people — so when states bar people with criminal convictions from jury service, they disproportionately exclude individuals from these groups.  Of the approximately 19 million Americans with felony convictions in 2010, an estimated 36% (nearly 7 million people) were Black, despite the fact that Black people comprise 13% of the U.S. population.  Although data on the number of Latinx people with felony convictions is difficult to find (because information about Latinx heritage has not always been collected or reported accurately within the criminal justice system), we do know that Hispanic people are more likely to be incarcerated than non-Hispanic whites and are overrepresented at numerous stages of the criminal justice process.  It stands to reason, then, that Latinx populations are also disproportionately likely to have felony convictions.

As a result, jury exclusion statutes contribute to a lack of jury diversity across the country. A 2011 study found that in one county in Georgia, 34% of Black adults — and 63% of Black men — were excluded from juries because of criminal convictions. In New York State, approximately 33% of Black men are excluded from the jury pool because of the state’s felony disqualification law.  Nationwide, approximately one-third of Black men have a felony conviction; thus, in most places, many Black jurors (and many Black male jurors in particular) are barred by exclusion statutes long before any prosecutor can strike them in the courtroom.

February 18, 2021 in Collateral consequences, Who Sentences | Permalink | Comments (0)

DEPC event on "Criminal Justice Reform in Ohio" and original resources on "Drug Sentencing Reform in Ohio"

SB3-Panel_for-socialI am very excited that next week the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law is hosting a virtual panel discussion, titled "Where Do We Go From Here?: Criminal Justice Reform in Ohio" at 2pm on February 24, 2021.  Here is the description and run down of the exciting event:

Ohio has a long history of criminal justice reform and drug sentencing reform, and yet few can be pleased that Ohio still has the 12th highest incarceration rate in the country and one of the highest rates of overdose deaths. With the passage of HB1 and the failure of SB3 at the end of 2020, many are left wondering what can and cannot be achieved through legislative reforms in Ohio.  Please join us for a discussion of Ohio’s recent reform history, what we might expect in the near future, and how research and experience in other states can inform reform efforts in the Buckeye State.

Panelists

Speakers:
Sara Andrews, executive director of the Ohio Criminal Sentencing Commission
Gary Daniels, chief lobbyist at the ACLU of Ohio
Micah Derry, state director for the Ohio chapter of Americans for Prosperity
Andrew Geisler, legal fellow at The Buckeye Institute
Kyle Strickland, deputy director of race and democracy at the Roosevelt Institute and senior legal analyst at Kirwan Institute for the Study of Race and Ethnicity

Moderator:
Douglas A. Berman, executive director of the Drug Enforcement and Policy Center

I am also quite pleased to note that the link in the above description takes folks to this original resource page titled "Drug Sentencing Reform in Ohio."  Here is some of the discussion and resources to be found at that page:

Since 2014, seven states have enacted reforms that have defelonized low-level drug offenses: Alaska, California, Colorado, Connecticut Oklahoma, Oregon, and Utah.  In late 2020, the Ohio House of Representatives opted not to join this growing list by declining a vote on Senate Bill 3 which sought to reclassify some low-level drug offenses from felonies to misdemeanors.  Its origins can be traced back to the ambitious, but ultimately failed, 2018 Issue 1 ballot initiative.  The constitutional amendment initiative included language aimed at reclassifying as misdemeanors those offenses related to drug possession and use, prohibiting courts from sending people back to prison for non-criminal probation violation, and reallocating savings created from lowering prison populations toward drug treatment services.  Like SB3, Issue 1 was vehemently opposed by judges and prosecutors around the state.

Though SB3 stalled, an array of other criminal justice reforms were enacted in the last General Assembly of 2020, including House Bill 1.  HB1 allows more wrongdoers to potentially benefit from alternative dispositions and record sealing. Some argued that the passage of HB1 addressed sufficiently some of the concerns driving support for SB3....

In addition to organizing [the Feb 24 panel] event, DEPC has gathered a variety of other resources to aid in understanding the complex evolution of criminal justice and drug sentencing reforms in Ohio, including a visualization of Ohio incarceration rates and a timeline of Ohio reforms since 2010.  Please see below for commentaries and writings on current and past drug sentencing reform efforts in Ohio, DEPC’s prior events focused on Ohio’s criminal justice reforms, and research aimed at answering some of the most important questions raised by proponents and opponents alike.

February 18, 2021 in Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, February 17, 2021

"'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery"

The title of this post is the title of this new paper available via SSRN and authored by Alison Lynch, Michael L. Perlin and Heather Cucolo.  Here is its abstract:

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment.  Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child.  Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

In this paper, we discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can better prepare an effective defense or mitigation.  We consider, in some depth, several of the substantive areas of criminal law and procedure in which an understanding of TBI is especially significant (including, but not limited to, competency status, the insanity defense and the death penalty), and assess the quality of counsel –and experts -- in such cases, again, in some instances, using the Montgomery case as a prism.

We believe that one (at least partial) remedy for the current situation is a turn to therapeutic jurisprudence (TJ) The TJ doctrine emphasizes giving an individual client dignity, voice, validation and voluntariness of action and decision.  This is particularly important for an individual with TBI, who will likely have the capacity to make the majority of decisions about his case, but who may still need behavioral treatment or interventions for symptoms of the TBI.  We will discuss the ways that TJ plays into these issues, and how TJ must be the grounding of any representation of this population.  We conclude with some modest suggestions as to how we can begin to make needed changes in the criminal justice system to take all of these issues into account.

February 17, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

The Sentencing Project releases "No End in Sight: America’s Enduring Reliance on Life Imprisonment"

The Sentencing Project has done remarkable work in recent years tracking (and advocating against) the growth of life and functional life sentences in the United States. This great work continues with the release today of this big report authored by Ashley Nellis titled "No End in Sight: America’s Enduring Reliance on Life Imprisonment." The whole 46-page report is worth a close read for anyone concerned about extreme punishments and mass incarceration, and here the start of the report's initial "Findings and Recommendations" section:

Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000.  Today, it’s 1.4 million; and more than 200,000 people are serving life sentences — one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.
Nearly five times the number of people are now serving life sentences in the United States as were in 1984, a rate of growth that has outpaced even the sharp expansion of the overall prison population during this period.  The now commonplace use of life imprisonment contradicts research on effective public safety strategies, exacerbates already extreme racial injustices in the criminal justice system, and exemplifies the egregious consequences of mass incarceration.
In 2020, The Sentencing Project obtained official corrections data from all states and the Federal Bureau of Prisons to produce our 5th national census on life imprisonment.
KEY FINDINGS
• One in 7 people in U.S. prisons is serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more), totaling 203,865 people;
• The number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since our first census in 2003;
• 29 states had more people serving life in 2020 than just four years earlier;
• 30% of lifers are 55 years old or more, amounting to more than 61,417 people;
• 3,972 people serving life sentences have been convicted for a drug-related offense and 38% of these are in the federal prison system;
• More than two-thirds of those serving life sentences are people of color;
• One in 5 Black men in prison is serving a life sentence;
• Latinx individuals comprise 16% of those serving life sentences;
• One of every 15 women in prison is serving life;
• Women serving LWOP increased 43%, compared to a 29% increase among men, between 2008 and 2020;
• The population serving LWOP for crimes committed as youth is down 45% from its peak in 2016;
• 8,600 people nationwide are serving parole-eligible life or virtual life sentences for crimes committed as minors.

February 17, 2021 in Data on sentencing, Detailed sentencing data, Examples of "over-punishment", Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Notable new press report on accounts of recent federal execution particulars

The AP has this notable new story, headlined "Executioners sanitized accounts of deaths in federal cases."  Here is how it gets started:

Executioners who put 13 inmates to death in the last months of the Trump administration likened the process of dying by lethal injection to falling asleep and called gurneys “beds” and final breaths “snores.”  But those tranquil accounts are at odds with reports by The Associated Press and other media witnesses of how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect inside the U.S. penitentiary death chamber in Terre Haute, Indiana. The AP witnessed every execution.

The sworn accounts by executioners, which government filings cited as evidence the lethal injections were going smoothly, raise questions about whether officials misled courts to ensure the executions scheduled from July to mid-January were done before death penalty opponent Joe Biden became president.  Secrecy surrounded all aspects of the executions. Courts relied on those carrying them out to volunteer information about glitches. None of the executioners mentioned any.

Questions about whether inmates’ midsections trembled as media witnesses described were a focus of litigation throughout the run of executions. Inmates’ lawyers argued it proved pentobarbital caused flash pulmonary edema, in which fluid rushes through quickly disintegrating membranes into lungs and airways, causing pain akin to being suffocated or drowned.  The Constitution prohibits execution methods that are “cruel and unusual.”

The discrepancies could increase pressure on Biden to declare his administration won’t execute any of the roughly 50 federal inmates still on death row.  Activists want him to go further by backing a bill abolishing the federal death penalty.  Biden hasn’t spoken about any specific action.

During the Sept. 22 execution of William LeCroy, convicted of killing Georgia nurse Joann Lee Tiesler in 2001, the 50-year-old’s stomach area heaved uncontrollably immediately after the pentobarbital injection.  It lasted about a minute, according to the AP and other reports.

Executioner Eric Williams stood next to LeCroy as he died.  But Williams made only cursory reference to “the rise and fall” of LeCroy’s abdomen in his account.  Shortly after serving in five of the recent executions, Williams was named the interim warden of the high-profile New York City lockup where Jeffrey Epstein died in 2019.  “During the entirety of the execution, LeCroy did not appear to be in any sort of distress, discomfort, or pain,” Williams wrote.  “A short time after he took a deep breath and snored, it appeared to me that LeCroy was in a deep, comfortable sleep.”

The distinctive jerking and jolting was visible in at least half the executions, according to the AP and other media accounts.  Among multiple executioner accounts, none described any such movements.  All employed the same sleep metaphors.

When Donald Trump’s Justice Department announced in 2019 it’d resume executions after a 17-year hiatus, it said it would use pentobarbital alone.  Manufacturers were no longer willing to supply the combination of drugs used in three federal executions from 2001 to 2003, explaining they didn’t want drugs meant to save lives to be used for killing.

One point of contention during the litigation was whether, even if pulmonary edema did occur, inmates could feel it after they appeared to be knocked out.  Experts for the prisoners said the drug paralyzes the body, masking the pain prisoners could feel as they died.  None of those executed appeared to writhe in pain.  But audio from the death chamber to the media viewing room was switched off just prior to the injections, so journalists couldn’t hear if inmates groaned or complained of pain.

February 17, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Tuesday, February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

"Revocation and Retribution"

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

Revocation of community supervision is a defining feature of American criminal law.  Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year.  While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release.  Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.”  Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation.  Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

February 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2020"

The US Justice Department's Bureau ofJustice Statistics today released this interesting new data report titled "Federal Prisoner Statistics Collected under the First Step Act, 2020."  Despite the year in its title, the report provides data on the federal prison population at the end of 2019 (so before any COVID-era shocks).  Here is how this 19-page report gets started and a few of its "key findings":

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually. BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs. Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2019, which represented the first full year under the FSA, and were collected in 2020. Data for 2020 will be available from the BOP in the second half of 2021. Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.

Key findings

  • The portion of federal prisoners who were the parent, step-parent, or guardian of a minor child (defined as a dependent age 20 or younger by the BOP) grew from 45% to 49% from year-end 2018 to year-end 2019 (table 1).
  • On December 31, 2019, a total of 31,458 federal prisoners were non-citizens of the United States (18% of all BOP prisoners), and 21,922 prisoners identified English as their second language (13% of all BOP prisoners). 

  • During 2019, a total of 3,791 federal prisoners earned a general-equivalency degree (GED) or other equivalent certificate while in prison. 

  • In 2019, there were 386 incidents of prisoners being placed in administrative maximum - segregated housing, the BOP’s most restrictive level of segregated housing. 

  • Of the 180 pregnant prisoners in federal custody in 2019, a total of 94 gave birth in custody and 74 were released before giving birth (table 2)....

  • While in custody, 116 federal prisoners received medication-assisted treatment for a substance-use disorder in 2019....

  • ƒIn 2019, all 122 BOP-operated facilities had video-conferencing capabilities for prisoners to participate in judicial hearings, foreign embassy consultations, reentry-related communications from probation offices, preliminary reentry preparation, disciplinary hearings, and the Institution Hearing Program.

  • A total of 89,369 prohibited acts occurred in BOP-operated facilities during 2019, of which 63,025 were committed in medium- or high-security facilities (71%) (table 4).

  • A total of 54,848 individual federal prisoners committed the 89,369 prohibited acts (table 5).

  • More than half of the individuals who committed prohibited acts in 2019 were age 35 or older (29,175 prisoners or 53%).

  • During 2019, there were 1,252 physical assaults on BOP staff by federal prisoners, with 18 of the assaults resulting in serious injury to the staff member (table 7).

  • In 2019, a total of 11,491 persons volunteered at BOP-operated facilities (table 8).

  • Faith-based programs made up 56% of all BOP recidivism-reduction partnerships in 2019 (table 9).

February 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Monday, February 15, 2021

"Just Let People Have Cellphones in Prison"

The title of this post is the title of this notable new Slate commentary authored by Hannah Riley.  I recommend the full piece, and here is how it starts:

In 2017, a man named Willie Nash was booked into a Mississippi county jail on a misdemeanor charge.  For reasons that aren’t clear, his cellphone wasn’t confiscated as the law dictated.  When he asked a jailer for a charger, the phone — which he had been using to text his wife — was seized.  Nash was then sentenced to 12 years for possessing the cellphone.  The case went all the way up to the Mississippi Supreme Court, where the 12-year sentence was affirmed. “While obviously harsh,” Justice James D. Maxwell II wrote for the court, “Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.”  Mr. Nash, a father of three, will be released back to his family in January of 2029, for the crime of texting his wife from jail.

In all federal and state prisons and jails, personal cellphones are classified as contraband — illegal for incarcerated people to possess.  Incarcerated people are allowed to communicate with loved ones via letters, expensive phone calls in a centralized location (done through a prepaid account or collect calls, for a limited amount of time), or sometimes through expensive email and video messages on a prison-issued tablet.  Due to COVID-19, in-person visitation has been halted in most prisons and jails since last March.

These rigid policies isolate incarcerated people and weaken their ties to friends and family. And this isolation radiates harm well beyond each individual.  The vast majority of the millions of people currently incarcerated in this country will, at some point, be released.  Every year, roughly 600,000 people leave prisons across the U.S., and a much higher number cycle in and out of jails.  Roughly 2.7 million children in the U.S. have an incarcerated parent....  There is a wealth of research that confirms that the stronger the relationships and connections to loved ones and community, the better a person will fare once they are released from prison or jail.  We’ve known this for a long time.  A study from 1972 noted that, “The central finding of this research is the strong and consistent positive relationship that exists between parole success and maintaining strong family ties while in prison.”  Decades later, the findings remain the same.  “Incarcerated men and women who maintain contact with supportive family members are more likely to succeed after their release,” a 2012 Vera Institute report found.

There is one obvious way to facilitate these community ties: allow incarcerated people to have cellphones.  For more than a decade, jailers and elected officials have attempted to incite a moral panic in the general public around the danger of cellphones, warning that incarcerated people would only use them to organize hits and buy drugs and run gangs on the outside.

It’s true that some incarcerated people have used contraband phones to extort people on the outside.  But targeting the tools rather than the roots of the corruption and violence within prisons is misguided.  A full decade ago, the New York Times conceded that the harsh penalties and increased vigilance weren’t working to keep phones out of prisons: “The logical solution would be to keep all cellphones out of prison. But that is a war that is being lost, corrections officials say.”  That hasn’t changed.  If you want to find a cellphone in prison or jail now, you can.  One former sheriff in South Carolina even allowed detainees in his jail to purchase cheap cellphones from commissary, arguing access to cellphones actually improves safety....

The reality is that prisons and jails are already saturated with cellphones (mostly smuggled in by correctional officers), and the vast majority of people use them in the exact same ways the vast majority use them on the outside: to stay connected.  To stave off boredom.  To learn.  To laugh.

February 15, 2021 in Prisons and prisoners, Technocorrections | Permalink | Comments (0)

Any guesses for when we might again have a fully functioning US Sentencing Commission?

It has been far too long since the US Sentencing Commission has been fully functional, and this post is my indirect way of saying that I hope getting the USSC back in action with a full slate of Commissioners is a top priority for the Biden Administration.  But, given that we still do not yet have a new confirmed Attorney General nearly a month into the new administration, and especially with other business (and other judicial openings) sure to be a higher priority, I am wondering if it may still be months before we can start talking seriously about what the "new Commission" ought to be doing to advance criminal justice reform.

Former Prez Donald Trump's track record with respect to the US Sentencing Commission was quite spotty.  As noted in this April 2017 post, the USSC had only two of seven commissioner slots filled at the start of 2017 (which led the Commission not to advance any formal amendments to the guidelines in that year).  Senate confirmation of two nominees gave the USSC a functioning quorum to be able to move forward with 2018 guideline amendments.  But a slate of new nominees to the Commission by former Prez Trump in March 2018 were controversial and got a cold shoulder from the Senate leaving the USSC again with only two Commissioners (and thus without a quorum) as it entered 2019.  Prez Trump  thereafter did not announce new nominees until August 2020 and, according to this recent Law360 piece, those names were never even formally sent to the Senate.

Long story short, the US Sentencing Commission was only somewhat functional for a small portion of the last four years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff has completed lots of research and has churned out many reports in the interim, but the FIRST STEP Act's passage in December 2018 made it particularly problematic for the USSC to have been non-functional in terms of formal amendments or agendas in recent years.

As reveled on this official US Sentencing Commission page, right now the USSC currently has only a single Commissioner and so will need six new confirmed members to be back to full strength (and it needs at least three new commissioners to have a quorum to even be somewhat functional).  All these vacancies present Prez Biden with an important opportunity to revive and reshape the work of the Commission at a time when the work of the Commission could and should be especially important.  And, as I noted in this post in November, the criminal justice reform recommendations of the Biden-Sanders Unity Task Force (first discussed here; available here pp. 56-62) included this notable recommended agenda for the USSC:

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision.

I am hopeful that the Biden Administration is already working toward developing a list of nominees for the Commission (which, by statute, have to be bipartisan). I am especially hopeful that the Biden team might be already getting input on this list from key folks in the Senate so that any eventual slate of nominees will be well-received and quickly confirmed.  But, as suggested at the outset, because of various competing priorities and the (usual and unusual) inside-the-Beltway distractions, I really do not have a good guess to the question in the title of this post.

February 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Sunday, February 14, 2021

"Black on Black Representation"

The title of this post is the title of this new article authored by Alexis Hoag now availble via SSRN.  Here is its abstract:

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services.  This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants.  Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship.  Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches.  First, it connects indigent representation to existing literature from other fields — clinical therapy and education — both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients.  To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust; factors that the American Bar Association identifies as integral to criminal defense.  Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine.  The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to poor people.

February 14, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (4)

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, February 13, 2021

"Bargained Justice: The Rise of False Testimony for False Pleas"

The title of this post is the title of this new article available via SSRN and authored by Andrew Pardieck, Vanessa Edkins and Lucian Dervan. Here is its abstract:

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent.  The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain.  Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves.

This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems.  It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain.  The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining's innocence problem.

February 13, 2021 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (2)

Notable reviews of extreme sentences in Pennsylvania

The tail end of this week brought a number of notable stories about notably extreme sentences (and a few releases therefrom) in Pennsylvania.  I will use headlines and links to cover a lot of ground involving a number of intersecting and overlapping stories:

"Report raises questions with second-degree murder sentencing in Pennsylvania"

"Pa.’s second-degree murder charge is outdated, unfair, Fetterman says"

"‘They don’t deserve to die in prison’: Gov. Wolf grants clemency to 13 lifers"

"The nation’s oldest juvenile lifer, Joe Ligon, left a Pa. prison after 68 years"

The first pair of stories relate to this notable new report by the Philadelphia Lawyers for Social Equity titled "Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Sentencing."

February 13, 2021 in Clemency and Pardons, Data on sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 12, 2021

"Direct Collateral Review"

The title of this post is the title of this notable new Columbia Law Review piece authored by Z. Payvand Ahdout (hat tip: How Appealing). Here is is abstract:

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings.  But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal.  Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts.  And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final.  This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption.  This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

February 12, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Litigation over clergy halts Alabama execution (and divides Justices in notable ways)

Though the federal government carried out the first three execution of 2021 last month, the first state execution in the US was scheduled to take place last night in Alabama.  But, as this local article explains, today "Willie B. Smith III remains alive on death row in Alabama, after the U.S. Supreme Court upheld a ruling that required Smith’s spiritual advisor to be in the execution chamber with Smith when he was given the lethal injection."  Here is more:

The ruling came down around 11:08 p.m. Thursday night, with the Alabama Department of Corrections calling off the execution one minute later.

In the concurring ruling, Justice Elena Kagan said that the law “guarantees Smith the right to practice his faith free from unnecessary interference”. “The Eleventh Circuit was right to bar Alabama from executing Smith without his pastor by his side,” Kagan said. “Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.”

Kagan along with Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Amy Coney Barrett all denied the Alabama Attorney General’s Office’s motion to overturn a lower court ruling requiring Smith’s spiritual advisor to be in the execution chamber. Justice Brett Kavanaugh along with Justice John Roberts, wrote the dissenting opinion.

Smith’s other claim as to why the execution should be called off centered on what his lawyers called an intellectual disability.  While the 11th Circuit Court of Appeals granted a stay based on that claim Wednesday night, the U.S. Supreme Court lifted that stay around 11 p.m. Thursday.

Smith, 51, was originally set to die by lethal injection at 6 p.m. inside of William C. Holman Correctional Facility in Atmore....  Smith was sentenced to death in 1992 for the Oct. 1991 abduction, robbery and murder of Sharma Ruth Johnson. Johnson’s body was found in the trunk of her burned car with a shotgun wound to her head, after being shot execution style at a east Birmingham cemetery. 

The full SCOTUS discussion of these issues is available at this link, but the opinions released by the justices are just concurrences and dissents from the denial of Alabama's application to lift the stay put in place by the Eleventh Circuit.  As Amy Howe explains in this SCOTUSblog post, the exact votes here are unclear even though it is clear that this issue has divided the more conservative block of Justices:

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber.  Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy.  The remaining two justices — Justices Samuel Alito and Neil Gorsuch — did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

This NPR piece about the ruling provides some context for how SCOTUS has struggled with execution clergy issues in recent years:

The Supreme Court justices have grappled with the same legal question at the core of the Smith case in the last two years, but have ruled very differently in each situation.  In 2019, the Supreme Court, by a 5-4 vote, ruled that Alabama could execute Domineque Hakim Ray, a Muslim man convicted of murder.

The appellate court had temporarily blocked the execution because the state barred the man from having a Muslim imam at his side in the death chamber. Alabama said only the prison's Christian minister would be allowed in.

A month later, in a 7-2 vote, the justices granted an eleventh-hour stay of execution to Patrick Henry Murphy, a Buddhist prisoner in Texas who had been denied a Buddhist religious adviser at his side in the death chamber.  The difference between the two cases, according to the conservative court majority, was that the Muslim prisoner waited too long to ask for an imam.

It's unclear what the state of Alabama's next move will be in the Smith case.

That both Justices Alito and Gorsuch remained silent and yet may have voted for the stay here is fascinating; these two have long seemed, by virtue of their votes and opinions, to be the two Justices most eager to ensure condemned inmates fail in any and all efforts to block or delay scheduled executions.  In addition, I believe this case may represent the very first time in which, in a closely divided vote, Justice Barrett joined an opinion of her more liberal colleagues.  Justice Barrett could have, of course, opted for the "silence is golden" approach adopted by Justices Alito and Gorsuch; that she notably decided instead to sign on to Justice Kagan's concurrence is quite noteworthy.

February 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Reminder of next week's "Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

OSJCL-Symposium_College-graphic-768x509I flagged a few weeks ago this great symposium taking place (on Zoom) next Friday, February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event. Registration for this event is now available at this link, and here is how the event is described and organized:

The Ohio State Journal of Criminal Law, in collaboration with the Drug Enforcement and Policy Center, is pleased to announce our live symposium for Spring 2021, “Prosecutorial Elections: The New Frontline in Criminal Justice Reform.”  This virtual series is aimed at provoking thoughtful and well-rounded discussion surrounding the responsibility of the modern prosecutor in ushering in criminal justice reform and how that responsibility intersects with their role to uphold the law.  The panelists, including both academics and practitioners, will explore these questions from a variety of perspectives.  A schedule for the symposium can be found below.

Schedule:

10:15 a.m.-10:30 a.m.: Opening Remarks and Introduction

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

12:00 p.m.-1:30 p.m.Lunch break

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

3:30 p.m.-5:00 p.m.:Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

5:00 p.m.: Closing remarks

A list of the speakers and their biographies can be found here.

February 12, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, February 11, 2021

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"

As detailed in this post from last June, US Senators Dick Durbin and Chuck Grassley responded to the ugly realities of the COVID pandemic and its impact on incarcerated persons by introducing a modest, but still important, new bill to reform the procedures surrounding federal elderly home release and compassionate release.  Disappointingly, that bill never moved forward in the last Congress, but this press release reports that it is back on the docket for the new Congress.  Here are excerpts from the release:

Amid the COVID-19 public health pandemic, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons.  Sadly, more than 200 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs.  

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  Since March of last year, BOP has opposed nearly all compassionate release requests, while courts have granted more than 2,000 over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus, which we know thrives in places like prisons.  I’m hopeful that we can take up legislation on a bipartisan basis so we can start to properly implement the First Step Act and protect communities from further COVID-19 outbreaks,” said Durbin.

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); 
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

Joining Durbin and Grassley in cosponsoring the legislation are Senators Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Kevin Cramer (R-ND), Chris Coons (D-DE), Roger Wicker (R-MS), and Cory Booker (D-NJ). 

As the release reveals, Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward. But, of course, Congress moves in mysterious ways, and I have learned never to expect too much from inside the Beltway.

February 11, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

How about some clemency grants from Prez Biden while his team works on grander clemency plans?

I am very pleased to see this lengthy new Politico piece shining a light on federal clemency under this full headline: "Trump left behind a clemency mess.  The clock’s ticking for Biden to solve it. Lawyers and criminal justice advocates are pushing Biden to act swiftly.  But Covid and the economy are pushing action back."  I recommend the whole piece, and here are excerpts:

Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations.  Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well.  Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.

But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog.  Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.  “They couldn’t have had time to formulate a plan,” the person said.

More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away.  One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice.  Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union's Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues....

“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”

The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.

In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further. In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.

In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden. But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.

Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.

But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources. “In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”...

Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.

“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. ... It takes courage to do it this year.  We are ready for this.  It’s time. It’s past time.”

Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.

The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases.  The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.

Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden. “There are ... more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances ... and destroying lives and families. It’s a total loser, but we do it.”

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that "It’s time. It’s past time."  I also share Mark Osler's view that this could have and should have been a transition priority for the Biden team.  Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a "comprehensive plan" for effective clemency reform.  But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

I am certain that there must be many dozens, and probably many hundreds, of cases that ought to be federal clemency "no-brainers."  (For example, women and men on the CAN-DO site or the lifer marijuana offenders assembled at Life for Pot or person highlighted by NACDL’s Trial Penalty Clemency Project.)  I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants to be part of Prez Biden's 100-day agenda and legacy.  As Senator Cohen highlights, every day of delay is another day "wasting their lives, wasting the federal government’s finances, and destroying lives and families."

A few of many recent related posts:

February 11, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thoughtful accounting of the dynamic world of prosecutorial discretion

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

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

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

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

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

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

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

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

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

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

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

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

A few recent related posts:

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

Wednesday, February 10, 2021

"The Sixth Amendment Sentencing Right and Its Remedy"

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

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences.  The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right.  The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis.  Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice.  What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment — the liberty interests of criminal defendants and democratic input into individual criminal cases.  Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

February 10, 2021 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Mid-week and mid-winter perspectives on lots of hot criminal justice reform stories

February has been cold and snowy in Ohio, but there are still lots of hot criminal justice reform stories cooking in the middle of winter all over the USA.  So, mid-week and mid-winter, here is a round-up of just some of the reform stories and commentaries catching my eye:

From The Appeal, "Trump Turned The Justice System Into a Black Box.  Biden Could Fix It."

From Bloomberg Law, "Law Firms and Nonprofits Must Work Together for Criminal Justice Reform"

From The Marshall Project, "What 120 Executions Tell Us About Criminal Justice in America"

From The Nation, "How Progressive District Attorneys Are Leading the Charge to Fix Our Broken Justice System"

From Newsweek, "The Biden Administration Can Act on Criminal Justice Reform Now"

From Real Clear Policy, "Washington Must Atone for its Legacy of Mass Incarceration"

From Reason.com, "Civil Commitment of Sex Offenders Pretends Prisoners Are Patients"

From Time, "Why It's So Significant That Virginia Looks Set To Abolish the Death Penalty"

February 10, 2021 in Recommended reading | Permalink | Comments (1)

State court limits new LA County DA's new directives limiting use of sentencing enhancements

I have noted in prior posts linked below the various reform efforts of new Los Angeles County District Attorney George Gascón and the push back these efforts have reeived from other prosecutors.  This week, these issues resuted in a notable state court ruling, and detailed in this Los Angeles Times article headlined "Several of D.A. George Gascón’s reforms blocked by L.A. County judge."  Here are excerpts:

Los Angeles County Dist. Atty. George Gascón was barred from implementing a significant part of his sprawling criminal justice reform platform Monday, after a judge ruled his plan to end the use of sentencing enhancements in thousands of criminal cases violates California law.

The order stemmed from a lawsuit filed late last year by the union that represents hundreds of L.A. County prosecutors, alleging some of Gascón’s plans exceeded his legal authority and put line prosecutors in an ethical bind.  Sentencing enhancements can add several years to a defendant’s time in prison if certain criteria are met, such as using a gun causing severe injury during the commission of a crime, or being a documented gang member.

The lawsuit took particular issue with Gascón’s policy of barring the use of sentencing enhancements for prior felony convictions, arguing that under California’s “three strikes” law, prosecutors do not have discretion “to refuse to seek the enhancement.”

In his ruling, Judge James Chalfant noted that the “three strikes” law requires prosecutors to “plead and prove” all prior serious or violent felony offenses.  He found Gascón’s directive ordering prosecutors not to file such enhancements unlawful, and cited several appellate cases that upheld the argument that strike offenses must be charged under state law.

“A district attorney’s discretion is not unlimited. He or she must work within the framework of the criminal system,” Chalfant wrote.  “The legislature also is entitled to enact laws intruding on the executive or judicial branches of government so long as they do not defeat or materially impair that branch’s core function.”

In a 46-page ruling, Chalfant also barred Gascón from ordering prosecutors to dismiss any sentencing enhancements in active cases, unless they can argue that there is insufficient evidence to prove the enhancement or that the dismissal would be in the interest of justice.

Since Gascón took office, many prosecutors have appeared in court and read a statement — which some derisively refer to as “the script” — acknowledging they were seeking to dismiss enhancements under Gascón’s order because they believed the underlying penalties for the crime in question were “sufficient to protect public safety and serve justice.”

Judges had already been blocking such motions to dismiss on those grounds, but Chalfant’s ruling also stopped Gascón from ordering prosecutors to read the statement, finding the remarks themselves are “inaccurate and incomplete” and would require prosecutors to commit an ethical violation by making an inaccurate representation to the court.

The ruling affects a significant number of cases in L.A. County, where there are 10,794 defendants currently facing charges with sentencing enhancements, according to statistics provided to The Times in response to a public records request.  Gascón can still bar prosecutors from filing most sentencing enhancements in new cases, though enhancements for prior strike offenses must still be charged, according to the order....

Gascón said he will appeal Chalfant’s ruling, which he acknowledged as an expected hurdle in his broader mission to reimagine criminal justice in Southern California. “More than 2 million people in Los Angeles County voted for a system of justice based on science and data, not fear and emotion.  Nevertheless, I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism,” he said in a statement.  “My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety.”

In a reply filed in January to the union’s suit, lawyers for L.A. County argued that prosecutors have broad discretion over whether to file strike enhancements and contended that if a judge granted the union’s petition, it would be an unprecedented overreach from the bench.  “The Union asks for something no California court has ever ordered, as no California court has ever deemed itself to have the power to require ... a district attorney to plead any particular criminal charge or sentencing enhancement,” the reply read. “To the contrary, courts have long held that such charging power is almost entirely unreviewable and is uniquely within the district attorney’s discretion.”

The day he took office, Gascón announced an array of sweeping changes that included putting an end to the use of enhancements, severely restricted when prosecutors can seek to hold defendants in lieu of bail, ended the use of the death penalty in L.A. County and stopped the practice of trying juveniles as adults.  The seismic policy shifts have drawn Gascón praise from other progressive prosecutors and criminal justice reformers nationwide, but left him at odds with his own staff and many of the local law enforcement officials he must work with to try cases.

The union lawsuit was being watched closely by law enforcement officials around the state and highlighted a broader divide between traditionalist and reform-minded prosecutors that has seemingly grown wider in recent weeks.  San Francisco Dist. Atty. Chesa Boudin and Contra Costa County Dist. Atty. Diane Becton filed briefs in support of Gascón, worrying that a ruling like the one issued Monday would have a “chilling effect” on the authority of elected prosecutors to enact reforms.

The full opinion is available at this link, and the coming appeals should be interesting to watch.

Prior recent related posts:

February 10, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Evading the Eighth Amendment: Prison Conditions and the Courts"

The title of this post is the title of this book chapter authored by Sharon Dolovich now available va SSRN.  Here is its abstract:

The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly.  This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody.  It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values.  The effect was to leave the people in prison without judicial protection from needless pain and suffering.  And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern.

February 10, 2021 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 9, 2021

"U.S. Attorney Transition Begins" ... and ... "The Justice Department Is Way Too White"

The title of this post is drawn from two recent headlines.  The first part comes from this new Justice Department press release, which states the following:

Continuing the practice of new administrations, President Biden and the Department of Justice have begun the transition process for the U.S. Attorneys.

“We are committed to ensuring a seamless transition. Until U.S. Attorney nominees are confirmed, the interim and acting leaders in the U.S. Attorneys’ Offices will make sure that the department continues to accomplish its critical law enforcement mission, vigorously defend the rule of law and pursue the fair and impartial administration of justice for all,” said Acting Attorney General Wilkinson.

Earlier this year, nearly all presidential appointees from the previous administration offered their resignations, though U.S. Attorneys and U.S. Marshals were asked to temporarily remain in place. Prior to the beginning of this U.S. Attorney transition process, approximately one-third of the U.S. Attorneys’ Offices were already led by acting or interim leadership.

President Biden will make announcements regarding his nominations to the Senate of new U.S. Attorneys as that information becomes available.

The second part is the title of this new and notable New Republic commentary authored by Ankush Khardori, which includes these passages (with some links from original retained):

One outstanding question that is likely to figure prominently in how progressives evaluate Biden’s eventual nominees is whether, and to what extent, the administration will try to address the unfortunate lack of racial diversity within the department, particularly in those top prosecutor positions.  This is a long-standing problem that got strikingly worse under Donald Trump.  Biden’s nominations of Lisa Monaco, Vanita Gupta, and Kristen Clarke for senior positions in the department have been a positive sign — that trio not only brings variety across lines of race and gender, they also happen to be as well-qualified a group as any you could assemble — but it remains to be seen how much progress the administration will make beyond these first big moves.

The lack of racial diversity among federal prosecutors is a significant problem, one that’s reflected throughout every segment of the legal profession.  It has shown little sign of abating.  A recent study once again confirmed the truly dismal state of affairs in the private sector: About 92 percent of law firm partners are white, just 2 percent are Black, and pretty much no one in a position of power seems to care.  President Biden has the opportunity to reverse these trends, which would not just benefit the lawyers who are currently struggling to advance in their careers — it would significantly improve the world for the Justice Department’s legal clients: the American people....

Last year, BuzzFeed’s Zoe Tillman found that just seven of the 93 U.S. attorneys at the time were nonwhite.  These problems weren’t as pronounced in the top ranks during the Obama administration, but the broad lack of diversity nevertheless persisted at every level even then.  In 2015, for instance, Stanford Law School released a study that found that just 13 percent of all assistant U.S. attorneys were Black or Latino....  [T]here are significant public policy implications that flow from the imperative to improve diversity at the department, including among the U.S. attorneys throughout the country.  These are really federally appointed local prosecutors — among the most prominent and consequential political and legal figures in their communities.  It is vital to have people in these positions who represent the diversity of our country and their communities, and who can tailor and calibrate their local enforcement priorities accordingly....

Biden’s first big hires suggest that he understands that there is value to diversity in the Justice Department’s ranks, but this is not simply a matter of optics.  The stakes here — and the potential for significant forward progress in the federal law enforcement apparatus — are very real.  For an administration that seems to want to aggressively address the many serious problems left and exacerbated by the Trump administration, empowering a new group of U.S. attorneys who look like and can relate to the communities that they’ll be serving will not just mark a sharp start to a new era, it will provide the foundation for a more durable and just future. 

February 9, 2021 in Who Sentences | Permalink | Comments (2)

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

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

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

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

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

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

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

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

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

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

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

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

The recommendations are: 

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

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

Coalition of civil rights groups calls on Prez Biden to commute all federal death sentences and halt capital activity

As reported in this AP piece, "civil rights and advocacy organizations are calling on the Biden administration to immediately halt federal executions after an unprecedented run of capital punishment under President Donald Trump and to commute the sentences of inmates on federal death row."  Here is more (with links from the original):

The organizations, including the American Civil Liberties Union, The Leadership Conference on Civil and Human Rights and 80 others, sent a letter to President Joe Biden on Tuesday morning, urging that he act immediately “on your promise of ensuring equality, equity, and justice in our criminal legal system.”

Biden has been systematically undoing many Trump administration policies on climate, immigration and ethics rules. Although he is against the death penalty and has said he will work to end its use, Biden has not commented on what he will do with Trump’s unprecedented push for the federal death penalty.  The Bureau of Prisons carried out more executions under Trump, 13, than any previous president....  The groups say Biden should step in immediately and take action, as his administration works to establish priorities, address systemic racism and overhaul parts of the criminal justice system.

In the letter, the civil rights groups said the use of the death penalty “continues to perpetuate patterns of racial and economic oppression endemic to the American criminal legal system.”...  “Any criminal legal system truly dedicated to the pursuit of justice should recognize the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” the letter said....

The groups told Biden he has the power to dismantle the death chamber building at the Federal Correctional Complex in Terre Haute, Indiana — the small building where the 13 executions were carried out in six months — in addition to rescinding the Justice Department’s execution protocols and a regulation that no longer required federal death sentences to be carried out by lethal injection and cleared the way to use other methods like firing squads and poison gas.

They also said Biden could prohibit prosecutors from seeking death sentences and commute the sentences of the several dozen inmates on federal death row.  Far-reaching steps by Biden, the letter said, would also preclude any future president from restarting federal executions.  Trump’s predecessor, Barack Obama, halted federal executions but never cleared death row or sought to strike the death penalty from U.S. statutes.  That left the door open for Trump to resume them.  “We … recognize that if there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” it said.

Cynthia Roseberry, the ACLU’s deputy director of policy for the justice division, said she knows that Biden has a lot on his plate and that he should be given some time to act on the death penalty.  But she said the groups wanted to assure Biden “that there is broad based support to be bold” on the issue and that some don’t require complicated policy initiatives or new legislation.  “These things,” Roseberry said, “can be accomplished with the stroke of the pen.”

The full ACLU press release about this letter is available at this link, and the full letter from the coaltion is available at this link.   

I noted here in response to last month's similar letter by 37 Democratic members of Congress that the call for commuting all of federal death row came with a request to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  This new call here to "immediately commuting the sentences of all individuals under federal sentence of death" does not alternative sentencing with any specificity, but it obviously avoids advocating that Prez Biden converting death sentences into life without parole sentences.  This is yet another reminder that modern adocacy against LWOP sentences, which often calls LWOP just a death sentence by another name, serves to complicate a bit advocacy against capital punishment.

February 9, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, February 8, 2021

CCRC releases a "Reintegration Agenda for the 117th Congress"

The Collateral Consequences Resource Center has this notable new report titled "A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment." Here is its introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020.  However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid.
  • Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution.

February 8, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Who Punishes More? Partisanship, Punitive Policies, and the Puzzle of Democratic Governors"

The title of this post is the title of this notable new research published in Political Research Quarterly authored by Anna Gunderson. Here is its abstract:

The growth of the carceral state over the last few decades has been remarkable, with millions of Americans in prison, jail, on parole or probation.  Political science explanations of this phenomenon identify partisanship as a key explanatory variable in the adoption of punitive policies; by this theory, Republicans are the driving force behind growing incarceration.  This article argues this explanation is incomplete and instead emphasizes the bipartisan coalition that constructed the carceral state.  I argue Democratic governors are incentivized to pursue more punitive policies to compete with Republicans when those Democrats are electorally vulnerable.  I test this proposition using a series of regression discontinuity designs and find causal evidence for Democrats’ complicity in the expansion of the carceral state. Democratic governors who barely win their elections outspend and outincarcerate their Republican counterparts. This article highlights Democrats’ role as key architects in the creation of vast criminal justice institutions in the states when those Democrats are electorally vulnerable.

February 8, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

US House subcommittee to hold hearing on means to "Prevent Abuse of the Clemency Power"

The planned start of former Prez Trump's second impeachment trial in the US Senate is sure to be getting all the attention on Capitol Hill tomorrow.  But this webpage notes that there will be an interesting hearing for clemency fans taking place the morning of February 9, 2021 in the the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives' Judiciary Committee. The hearing it titled "Constitutional Means to Prevent Abuse of the Clemency Power," and this webpage lists these scheduled witnesses:

Ms. Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown University Law Center

Ms. Karen Hobert Flynn, President, Common Cause

Mr. Josh Blackman, Professor of Law, South Texas College of Law Houston

Mr. Timothy Naftali, Clinical Associate Professor of Public Service, New York University

February 8, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Restoring the Historical Rule of Lenity as a Canon"

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

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

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

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

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

Sunday, February 7, 2021

Reviewing notable criminal justice reform developments in (red) Ohio

I have long talked up criminal justice developments in Ohio because the state has long been a considered a bellwether for national developments.  But thanks to gerrymandering of state legislative district and other recent developments, Ohio is perhaps now more properly viewed as a red state.  Stiil, the political reality that Ohio's General Assembly is now GOP-heavy arguably make recent progessive criminal justice reforms in the Buckeye state even more noteworthy.  This new local article, headlined "Ohio makes big leaps forward on criminal justice changes," effectively reports on recent significant legislative action in this area, and here are excerpts:

Advocates for criminal justice reforms scored multiple wins in the closing weeks of 2020 that they say will give thousands of Ohioans a second chance.  Gov. Mike DeWine signed half a dozen bills into laws that will take effect later this year. The potential impacts are sweeping.

Incarcerated pregnant women will no longer be shackled to hospital beds as they deliver their babies.  Poor people will be able to perform community service as a way to get their driver’s licenses back instead of paying huge fees.  Ohioans who made mistakes will have an easier time getting professional licenses to advance their careers.  People suffering from serious mental illnesses at the time of the crime will not be executed. Teens who commit terrible crimes will serve their time but will still have the hope of making parole someday. 

And House Bill 1 will allow Ohioans in the throes of addiction to get drug treatment instead of a criminal record.  DeWine called House Bill 1 the most significant among the recent criminal justice reforms.  “There is a broad consensus in this country that people who commit crimes — non-violent offenses — because of the fact that they’re an addict, we all want to see them succeed.  We want them to get clean, stay clean and be good members of society,” said DeWine, a former Greene County prosecutor and state attorney general.  “There is a broad consensus that if they can get clean and on a pathway, we don’t want to tag them with a felony conviction. So this makes sense.”...

Support for HB1 came from the right and left — Ohio Supreme Court Chief Justice Maureen O’Connor, ACLU of Ohio, the conservative Buckeye Institute, public defenders and prosecutors.  Other bills signed into law by DeWine will reduce the “collateral sanctions” — additional punishments that were popular with tough-on-crime lawmakers over the past several decades.  Such sanctions made it more difficult to get professional licensing, housing, student financial aid, driver’s licenses and more.  “Again, we have a broad consensus that we shouldn’t be having those.  Once a person has served their time or served their probation, probably they should be able to move on with their lives,” DeWine said....

Additional reform efforts in 2021 will likely focus on Ohio’s cash bail system, the death penalty, knocking down the number of collateral sanctions people face when they’re convicted, holding the Ohio Parole Board accountable and pushing for criminal drug sentencing changes, said [Kevin] Werner of the Ohio Justice and Policy Center.

Also, while several criminal justice bills made it across the finish line, a comprehensive package of changes in Senate Bill 3 failed to win final approval.  SB3 called for reducing certain felony drug offenses to misdemeanors.  Shakyra Diaz, state director of the Alliance for Safety and Justice, which lobbied for SB3, said Ohio families still need solutions to the addiction crisis and the alliance will continue to work with lawmakers.  “Giving felony convictions to Ohioans with addictions only makes the problem worse, and inaction is not an option as more families lose loved ones to addiction and overdoses because they needlessly cycle through the criminal justice system without getting treatment,” Diaz said.

February 7, 2021 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Lots of great coverage at CCRC of lots of great 2020 criminal record reform activity

I blogged here last month about this big report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel which reviewed all the criminal record reforms enacted by states in 2020.   I know see that CCRC has been highlighting particular reforms on particular issues in this recent series of posts:

Regular readers likely realize that marijuana expungements are a topic of particular interest to me.  Back in 2018 I wrote an article focused just on this topic, "Leveraging Marijuana Reform to Enhance Expungement Practices," and this past year I co-wrote another piece focused on Arizona reforms that made much of this issue, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform."

February 7, 2021 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0)

"Can Prosecutors Help To End Mass Incarceration?"

The title of this post is the title of this article/book review authored Rachel Barkow now available via SSRN.  Here is its abstract:

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.”  While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration.  In this review, I explain why. 

Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments.  In this review, I document the resistance to prosecutors seeking to decarcerate.  The forces pushing back come from outside and inside the office.  We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors.  They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive.  If they are not putting their full support behind these institutional changes, one should question just how progressive they are.

But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own.  Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices.  Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control.  Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

February 7, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Saturday, February 6, 2021

New AP report concludes "Federal executions likely a COVID superspreader"

This new Associated Press article details the conclusions of its investigation concerning the spread of COVID-19 in and around the federal facilities responsible for executions at the tail end of the Trump Administration.  Here is how the lengthy piece gets started:

As the Trump administration was nearing the end of an unprecedented string of executions, 70% of death row inmates were sick with COVID-19.  Guards were ill.  Traveling prisons staff on the execution team had the virus.  So did media witnesses, who may have unknowingly infected others when they returned home because they were never told about the spreading cases.

Records obtained by The Associated Press show employees at the Indiana prison complex where the 13 executions were carried out over six months had contact with inmates and other people infected with the coronavirus, but were able to refuse testing and declined to participate in contact tracing efforts and were still permitted to return to their work assignments.  Other staff members, including those brought in to help with executions, also spread tips to their colleagues about how they could avoid quarantines and skirt public health guidance from the federal government and Indiana health officials.

The executions at the end of Donald Trump’s presidency, completed in a short window over a few weeks, likely acted as a superspreader event, according to the records reviewed by AP.  It was something health experts warned could happen when the Justice Department insisted on resuming executions during a pandemic.

It’s impossible to know precisely who introduced the infections and how they started to spread, in part because prisons officials didn’t consistently do contact tracing and haven’t been fully transparent about the number of cases.  But medical experts say it’s likely the executioners and support staff, many of whom traveled from prisons in other states with their own virus outbreaks, triggered or contributed both in the Terre Haute penitentiary and beyond the prison walls.

Of the 47 people on death row, 33 tested positive between Dec. 16 and Dec. 20, becoming infected soon after the executions of Alfred Bourgeois on Dec. 11 and Brandon Bernard on Dec. 10, according to Colorado-based attorney Madeline Cohen, who compiled the names of those who tested positive by reaching out to other federal death row lawyers. Other lawyers, as well as activists in contact with death row inmates, also told AP they were told a large numbers of death row inmates tested positive in mid-December.

In addition, at least a dozen other people, including execution team members, media witnesses and a spiritual adviser, tested positive within the incubation period of the virus, meeting the criteria of a superspreader event, in which one or more individuals trigger an outbreak that spreads to many others outside their circle of acquaintances.  The tally could be far higher, but without contact tracing it’s impossible to be sure.

February 6, 2021 in Death Penalty Reforms, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Notable new research on criminal justice impact of a safe consumption site

Policies and attitudes toward so-called "safe consumption sites" for drugs may serve as one of many interesting tests for whether the Biden Administration is prepared to take a whole new approach to the drug war.  If inclined to be more supportive of these sites, the Biden folks might want to make much of this notable new research recently published in the journal Drug and Alcohol Dependence.  Produced by multiple authors under the title "Impact of an unsanctioned safe consumption site on criminal activity, 2010–2019," here is the article's abstract:

Background

Health and social impacts of safe consumption sites (SCS) are well described in multiple countries.  One argument used by those opposed to SCS in the US is that findings from other countries are not relevant to the US context.  We examined whether an unsanctioned SCS operating in the US affected local crime rates.

Methods

Controlled interrupted time series (ITS) analysis of police incident reports for five years before and five years after SCS opening, comparing one intervention and two control areas in one city.

Results

Narcotic/drug incidents declined across the pre- and post-intervention periods in the intervention area and remained constant in both control areas, preventing an ITS analysis but suggesting no negative impact.  On average, incident reports relating to assault, burglary, larceny theft, and robbery in the post-intervention period steadily decreased at a similar rate within both the Intervention area and Control area 1.  However the change in rate of decline post-intervention was statistically significantly greater in the Intervention area compared to Control area 1 (difference in slope -0.007 SDs, 95 % CI: −0.013, −0.002; p = 0.01).  The Intervention area had a statistically significant decline in crime over the post-intervention period compared to Control area 2 (difference in slope −0.023 SDs, 95 % CI: −0.03, −0.01; p < 0.001).

Conclusions

Documented criminal activity decreased rather than increased in the area around an unsanctioned SCS located in the US in the five years following SCS opening.

February 6, 2021 in Drug Offense Sentencing, National and State Crime Data | Permalink | Comments (0)

Friday, February 5, 2021

Virginia, the state "that since Colonial times has executed more people than any other," is on verge of abolishing the death penalty

As reported in this local article, headlined "House of Delegates backs abolishing death penalty, signaling end of capital punishment," the Commonwealth of Virginia is on the cusp of historic criminal justice reform.  Here are the details: 

In a landmark vote Friday, the Virginia House of Delegates passed a bill to abolish the death penalty in the state that since Colonial times has executed more people than any other.  With the Senate approving similar legislation Wednesday and Gov. Ralph Northam backing both measures, the action all but ends the death penalty in Virginia, which will now join 22 other states without a capital punishment law on the books.

"In the 20th century, few would have thought this was likely to happen at all, much less that Virginia would be the first in the South to eliminate capital punishment," said Larry Sabato, a political analyst at the University of Virginia. "This is a watershed moment. It shows dramatically how different the new Virginia is from the old," he said.

The House passage, 57-41, was largely along party lines, with three Republicans — Dels. Carrie Coyner, R-Chesterfield, Roxann Robinson, R-Chesterfield and Jeff Campbell, R-Smyth — voting with the Democrats who hold the majority in the House.  The votes followed passionate debate in each chamber this week over the government's ultimate sanction.

Since 1608, Virginia has executed almost 1,400 people — 113 of them since the U.S. Supreme Court allowed capital punishment to resume in 1976, the second-highest toll in the U.S. in modern times.

Speaking Thursday on behalf of the bill he sponsored, Del. Mike Mullin, D-Newport News, a prosecutor in Hampton, said, "There are many arguments for why we should abolish the death penalty. These arguments touch on everything from the moral implications of the death penalty, to the racial bias in how it is applied, to its ineffectiveness, to the extraordinary cost."

"But perhaps the strongest argument for abolishing the death penalty is that a justice system without the death penalty allows us the possibility of being wrong," he said. He cited the case of Earl Washington Jr., Virginia's only death row exoneree among 174 across the U.S.  Washington came within days of execution in 1985 for a rape and murder that DNA later proved was committed by another man. "How many people are we willing to sacrifice to vengeance," Mullin asked.

Shortly before the House vote Friday, Del. Jay Jones, D-Norfolk, who is vying for the Democratic nod to run for attorney general, urged passage, saying the United States is the only Western country that still has the death penalty. "The death penalty is the direct descendant of lynching.  It is state-sponsored racism and we have an opportunity here to end this today," he said....

Supporters of the death penalty did not have the backing of the Virginia Association of Commonwealth's Attorneys this year as the organization decided to let each member argue their own cases.  A dozen top prosecutors in the state favored abolition.

Michael Stone, executive director of Virginians For Alternatives to the Death Penalty, said, Friday's vote in the House, "is a repudiation of the long and violent policy of 1,390 executions carried out by the Commonwealth since 1608.  We look forward to Governor Northam signing this bill into law." Northam, following the Senate passage Wednesday, said, "The practice is fundamentally inequitable.  It is inhumane.  It is ineffective. And we know that in some cases, people on death row have been found innocent."...

There have been no now new death sentences imposed in the state since 2011 and no executions since 2017.  Under the legislation approved this week, the two men remaining on Virginia's death row — both convicted in Norfolk — will have their death sentences changed to life without parole....

If made law, the legislation would mean that all the current 15 types of capital murder — such as murder in the commission of a rape or robbery or the slaying of a law enforcement officer — would become aggravated murder punishable by life in prison without parole. However, as many critics point out, when sentencing, a judge — except in the case of the murder of a police officer — could suspend part or all of such a sentence.  That was a sticking point for some Republicans, particularly Sen. Bill Stanley, R-Franklin, who opposes the death penalty but said he could not vote for the legislation if it meant such a killer might someday be free.

WOW!

February 5, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)