Monday, October 11, 2021

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

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

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

October 11, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 10, 2021

Making the case for conservatives to advance criminal justice reforms

Mark Holden and Jason Pye has this new Fox News commentary headlined "Trump made conservatives criminal justice reform leaders. Here's how to keep it that way." Here are excerpts:

Since the signing of the First Step Act, the conservative movement has become a leader in criminal justice reform.  What could be more conservative than fixing the features in our justice system that promote unequal punishment, inhibit work, waste taxpayer money and law enforcement resources?

Voters, Republicans, Democrats, and independents alike, also believe in criminal justice reform and want these issues to be fixed.  A survey conducted in July by Public Opinion Strategies showed that 67 percent of Iowa voters, for example, believe that too many low-level drug offenders are in prisons.  The poll also reflected support for eliminating mandatory minimum prison sentences and having government resources focus more on treating those with addictions instead of prosecuting them....

We have found that harsher drug penalties do not deter use.  Congress imposed five- and ten-year mandatory minimum prison sentences for heroin, but the prevalence of its use is nearly identical today as it was in 1988.  These penalties have not deterred use of heroin nor expanded treatment options for those suffering from addition.  This policy choice fails to solve the root causes of substance abuse and addiction in America...

As conservatives, we must continue to establish ourselves as leaders in criminal justice reform.  It is a proven political winner, judging from President Trump`s expanded GOP coalition, especially black voters, who cited his support for criminal justice reform as a reason for their vote.  It is a proper platform to assert conservative principles.  Our system is badly broken, and we can use our values of public safety, restraining costs, small government, equality and due process to help fix it.

October 10, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative briefing highlights disproportionate role of Native peoples in US criminal justice systems

Incarceration_byrace_2019The Prison Policy Initiative has this notable new briefing authored by Leah Wang titled "The U.S. criminal justice system disproportionately hurts Native people: the data, visualized."  Here is part of its text:

This Monday is Indigenous Peoples’ Day, a holiday dedicated to Native American people, their rich histories, and their cultures. Our way of observing the holiday: sending a reminder that Native people are harmed in unique ways by the U.S. criminal justice system.  We offer a roundup of what we know about Native people (those identified by the Census Bureau as American Indian/Alaska Native) who are impacted by prisons, jails, and police, and about the persistent gaps in data collection and disaggregation that hide this layer of racial and ethnic disparity.

The U.S. incarcerates a growing number of Native people, and what little data exist show overrepresentation In 2019, the latest year for which we have data, there were over 10,000 Native people locked up in local jails.  Although this population has fluctuated over the past 10 years, the Native jail population is up a shocking 85% since 2000.  And these figures don’t even include those held in “Indian country jails,” which are located on tribal lands: The number of people in Indian country jails increased by 61% between 2000 and 2018.  Meanwhile, the total population of Native people living on tribal lands has actually decreased slightly over the same time period, leaving us to conclude that we are criminalizing Native people at ever-increasing rates.

Government data publications breaking down incarcerated populations by race or ethnicity often omit Native people, or obscure them unhelpfully in a meaningless “Other” category, perhaps because they make up a relatively small share of the total population.  The latest incarceration data, however, shows that American Indian and Alaska Native people have high rates of incarceration in both jails and prisons as compared with other racial and ethnic groups.  In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.

Native people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent.  Similarly, Native people made up about 2.3% of people on federal community supervision in mid-2018.  The reach of the federal justice system into tribal territory is complex: State law often does not apply, and many serious crimes can only be prosecuted at the federal level, where sentences can be harsher than they would be at the state level.  This confusing network of jurisdiction sweeps Native people up into federal correctional control in ways that don’t apply to other racial and ethnic groups.

Native women are particularly overrepresented in the incarcerated population: They made up 2.5% of women in prisons and jails in 2010, the most recent year for which we have this data (until the 2020 Census data is published); that year, Native women were just 0.7% of the total U.S. female population.  Their overincarceration is another maddening aspect of our nation’s contributions to human rights crises facing Native women, in addition to Missing and Murdered Indigenous Women (MMIW) and high rates of sexual and other violent victimization.

October 10, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Saturday, October 9, 2021

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”

October 9, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2)

"Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals"

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

As the COVID-19 pandemic wreaked havoc on American society in the spring of 2020, advocates for incarcerated people began sounding alarm bells alerting society to the impending devastation for incarcerated people once the coronavirus scaled the prison walls.  For too many incarcerated people, the alarms fell on deaf ears and the COVID-19 pandemic has had life-shattering consequences for thousands of individuals locked inside American prisons.  But to anyone with an understanding of the historical realities of and legal parameters around the American carceral state, the devastation came as no surprise.

Since the 1980s, America has led the world in imprisoning its own citizens, and, to many, American justice means locking human beings in overcrowded cages and throwing away the key.  This Article explores how American criminal “justice” has created a system wherein three interconnected strands of indifference render incarcerated people particularly vulnerable to devastating harms like those associated with the COVID-19 pandemic.  First, the sheer enormity of the American carceral state has led to the creation of prison bureaucracies that operate with institutional indifference to the lives of the incarcerated.  Sympathetic to the complex task of administering enormous prison systems, the federal judiciary has created a doctrine of judicial indifference to harms experienced to incarcerated people.  Finally, the Article explores how a general societal indifference to the lives of incarcerated individuals in particular and marginalized groups in general has allowed the institutional and judicial indifference to develop and proliferate.  The Article posits that the damaging consequences of the COVID-19 pandemic on the incarcerated population are directly tied to these interwoven indifferences and calls on widespread reform and decarceration to avoid future cautionary tales.

October 9, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, October 8, 2021

With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?

As reported in this Bloomberg piece, the first jury trial in the Varsity Blues prosecutions ended this afternoon: "Two parents accused of cheating to get their children into elite U.S. universities were found guilty of all charges, in the first trial stemming from a national college admissions scandal that ensnared dozens of families."  Here is more:

Former Wynn Resorts Ltd. executive Gamal Abdelaziz, 64, was convicted Friday of two counts of conspiracy by a Boston jury after prosecutors alleged he paid $300,000 in bribes to get his daughter into the University of Southern California as a purported basketball player.

Private equity investor John B. Wilson, 62, was convicted of conspiracy, bribery, fraud and filing a false tax return after prosecutors alleged he paid more than $1.2 million in bribes to get his son into the University of Southern California and his twin daughters into Stanford and Harvard as star athletes.

After a three-week trial, the jury deliberated for about 11 hours before rendering the verdict. Abdelaziz and Wilson will be sentenced in mid-February. For both men, the most serious charge carries a maximum prison sentence of 20 years.

The verdict is a victory for prosecutors who charged 57 parents, coaches and others for taking part in the alleged scheme, which involved doctoring entrance exam scores, faking athletic prowess and bribery to gain seats at universities. An FBI sting unveiled in March 2019 swept up several prominent figures, including “Desperate Housewives” star Felicity Huffman and former Pimco chief executive Douglas Hodge. The case unfolded as the nation debated questions of privilege and inequality.

Thirty-three of the parents have pleaded guilty, with prison sentences ranging from two weeks to 9 months. Former U.S. attorney for Massachusetts Andrew Lelling, who oversaw the case, said he hoped the dozens of jail sentences would deter would-be scammers. He acknowledged it wouldn’t change what he said was parents’ unhealthy obsession with colleges as brands.

During the trial, prosecutors alleged that both Abdelaziz and Wilson had worked with college counselor William “Rick” Singer, the admitted mastermind of the scheme. The U.S. said both paid Singer to guarantee a “bulletproof” way of getting their kids into elite colleges. Prosecutors called 14 witnesses and showed jurors scores of emails they said was proof both men knew and understood Singer’s plan....

The government never called Singer, who proved a problematic cooperator. He kept some of the money parents paid him, tipped some off about the investigation and erased about 1,500 text messages from his mobile phone. He made notes saying federal agents wanted him to “bend the truth” when drawing the parents out and “retrieve answers that are not accurate.” Lawyers for both defendants assailed Singer as a con man who duped them into believing their funds were legitimate donations going to schools or sports facilities....

Four more parents are due to go on trial next year. One father was pardoned by former president Donald Trump.

I have done numerous posts about some of the defendants who were among the first to plead guilty and received relatively short sentences in this high-profile college admissions scandal (some of those posts are linked below).  I have not closely followed some of the more recent sentencings, but the question in the title of this post highlights why I will have extra interest in how Abdelaziz and Wilson are treated by both the Justice Department and the sentencing judged.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.  From a quick scan, it does not appear that DOJ has sought a sentence in any of the plea cases of more than 18 months in prison; the longest imposed sentence has been nine months. 

I would guess that the DOJ sentencing recommendations for Abdelaziz and Wilson will longer than 18 months, but how much?  Does the high-profile nature of this case make it a bit less likely that DOJ will seek to go hard after these defendants, who seem like so many others save for their decision to test the government at a trial?  (The amount of money and number of kids involved in the Wilson case may the the reason DOJ will cite for a longer recommended term.)  In addition to wondering about DOJ recommendation, of course, it will be interesting to see how the sentencing judge decides to follow the requirement in 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."   It seems we have to wait until 2022 for final answers to these question, but I welcome speculation in the comments.

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

October 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Council on Criminal Justice presents data on "Homicide Trends: What You Need to Know"

The quoted portion of the title of this post is the title of this helpful new data briefing on modern US homicide trends produced by the Council on Criminal Justice.  Here is how the presentation of data is introduced (with links from the original) along with the key six data observations:

Each fall, the Federal Bureau of Investigation aggregates and distributes annual crime data from law enforcement agencies across the country.  Many agencies now post their own weekly and monthly data online, permitting researchers, including those at the Council on Criminal Justice (CCJ), to analyze and report trends in closer to real time.

On September 27, the FBI released its year-end report for 2020.  The government’s figures largely mirrored what CCJ and Arnold Ventures reported in January based on a sample of 34 cities. Both reports, for instance, indicated that in 2020 homicide increased by nearly 30% over the year before.

This brief summarizes key takeaways based on the newly issued FBI report as well as historical and more recent data....

  1.  Violent crime, particularly homicide, increased in 2020. The increase has slowed in 2021 and levels remain below historical highs.... 
  2.  A greater share of homicides involved firearms in 2020....
  3.  The age of homicide victims and offenders remains relatively stable, although it declined slightly in 2020....
  4.  The percentage of Hispanic victims and offenders has decreased....
  5.  The homicide clearance rate declined significantly in 2020, continuing a downward trend that began in the 1970s....
  6.  The circumstances of homicides have grown increasingly unclear.

October 8, 2021 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Third Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez

As reported in this post, the Supreme Court last month stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and pray aloud in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request.

Since those posts, as noted here, Texas has been able to complete one execution; but, as noted here, another Texas inmate was able to secure an execution stay based on religion claim SCOTUS is considering in Ramirez.  And, as detailed in this new local article, headlined "Man on death row for killing pregnant Wichita Falls woman gets stay of execution," it appears another scheduled Texas execution was been delayed:

A death row prisoner convicted of murdering a pregnant Wichita Falls woman and her 7-year-old son more than 16 years ago will not be executed next week.

54-year-old Stephen Barbee was set to die next Tuesday, October 12. However, a federal court Thursday, October 7, stayed the execution after Barbee’s request that his pastor be able to touch and pray aloud with him in the death chamber had been rejected by the Texas Department of Criminal Justice.

Barbee is on death row for the suffocation deaths of 34-year-old Lisa Underwood and her son Jayden in their Fort Worth home in February, 2005.... Prosecutors said Barbee killed Underwood because he thought he was the father of Underwood’s unborn son, and he was afraid she would tell his wife.

Prior related posts:

October 8, 2021 in Death Penalty Reforms | Permalink | Comments (1)

Thursday, October 7, 2021

Still time to register for day two of "Understanding Drug Sentencing" conference

I really enjoyed the first day of the two-day conference being put on by the Drug Enforcement and Policy Center and the Academy for Justice today and tomorrow, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  With a second day still to go, folks can still register for all of of Friday events, on this Agenda page.  Here are times and titles for the three great panels scheduled for Friday, October 8: 

11am – 12:15pm:   Sentencing Criteria as Crazymaker in Drug Cases

12:20pm – 1:35pm:   Reimagining an Antiracist Approach to Drug Sentencing

1:45pm – 3pm:   What Other Alternatives? Thinking Beyond Drug Courts and Sentencing

I thought day one of the symposium was terrific, and it included the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" with former US Attorney General Eric Holder, Jr., author and advocate Piper Kerman, Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon Marbley for the Southern District of Ohio.  I am pretty sure recordings of that great discussion, as well as all the other panels, should be available online before too long.  In the meantime, Kyle Jaeger at Marijuana Moment has this new piece discussing and contextualizing former AG Holder's comments under the headlined "Former U.S. Attorney General Says U.S. Is ‘On The Path’ To Federal Marijuana Decriminalization." 

October 7, 2021 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

New California law to end mandatory minimum terms for many non-violent drug offenses

Ironically, I have been so busy this week with this on-going conference about drug sentencing, I am just now getting a chance to blog about the drug sentencing news from California discussed in this local article headlined "Gov. Newsom Signs Bill Ending Mandatory Minimum Sentences For Many Non-Violent Drug Crimes." Here are details:

Governor Gavin Newsom signed into law a bill that ends mandatory minimum sentences for non-violent drug crimes on Tuesday, giving judges more individual discretion on punishing criminals.

Senate Bill 73, authored by Senator Scott Wiener (D-San Francisco), ends the prohibition against probation and suspended sentencing for drug crimes, including possessing more than 14.25 grams of illegal drugs, agreeing to sell or transport opiates or opium derivatives, planting or cultivating peyote, some forging or altering prescription crimes, and other similar non-violent drug-related crimes.

According to SB 73, the bill would not end the ability of judges to administer mandatory minimum length jail sentences. It would also not end laws that require jail time for many other drug offenses or remove probation ineligibility for those who had previously committed drug felonies.

Senator Wiener wrote the bill earlier this year to better address drug addiction treatment and to stop mass non-violent crime imprisonments. “Our prisons and jails are filled with people, particularly from communities of color, who have committed low-level, nonviolent drug offenses and who would be much better served by non-carceral options like probation, rehabilitation and treatment,” Wiener said in a statement on Tuesday. “It’s an important measure that will help end California’s system of mass incarceration.”...

However, law enforcement groups reiterated on Tuesday and Wednesday that the removal of mandatory minimums would lead to side effects such as an increase of drug use, a rise in drug sales, and a rise in drug-related crimes.  “SB 73 sets a dangerous precedent and would jeopardize the health and safety of the communities we are sworn to protect,” said the California Police Chiefs Association in response to the signing.

October 7, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

"Criminal Justice Secrets"

The title of this post is the title of this notable new paper authored by Meghan Ryan. Here is its abstract:

The American criminal justice system is cloaked in secrecy.  The government employs covert surveillance operations.  Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence.  Juries convict defendants on secret evidence.  Jury deliberations are a black box.  And jails and prisons implement clandestine punishment practices.   Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings.   Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns.  The accumulation of secrecy and the aggregation of these concerns create a real constitutional problem.

October 7, 2021 in Procedure and Proof at Sentencing | Permalink | Comments (0)

Oregon Supreme Court rules legislative change renders prior death sentence now violates state constitution's proportionality requirements

The Oregon Supreme Court had a notable unanimous ruling today which finds a state death sentence unconstitutional in a way that, according to this press piece, could mean that many or even all those now on the state's death row will be able to get their death sentences overturned.  The ruling in Oregon v. Bartol, 368 Or 598 (Oct. 7, 2021) (available here), substantively concludes this way:

Legislative enactments are strong indicators of those standards, and the enactment of SB 1013 shows that the legislature has determined that, regardless of when it was committed, conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree” does not fall within the narrow category of crimes for which the death penalty can be imposed.  Importantly, that moral judgment stands apart from the question of retroactivity.   Although the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, the enactment of the bill itself reflects a judgment that conduct that was previously classified as “aggravated murder” does not fall within the narrow category of conduct that can be punished by death, as opposed to lesser sentences, including life imprisonment.  Consequently, maintaining defendant’s death sentence in this case would violate two special proportionality requirements that, under Article I, section 16, apply to the death penalty: the requirement that the death penalty “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution,’ ” Roper, 543 US at 568 (quoting Atkins, 536 US at 319), and the requirement that there be “a fundamental, moral distinction” between crimes that are punishable by death and those that are not, Kennedy, 554 US at 438.  Maintaining his death sentence would allow the execution of a person for conduct that the legislature has determined no longer justifies that unique and ultimate punishment, and it would allow the execution of a person for conduct that the legislature has determined is no more culpable than conduct that should not result in death.  Therefore, in light of the legislature’s enactment of SB 1013, we conclude that defendant’s sentence violates Article I, section 16.

October 7, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, October 6, 2021

Still time to register for "Understanding Drug Sentencing" conference former AG Eric Holder and Piper Kerman keynote

I first noted here the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice set for October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  On the eve of the event, folks can still register separately for each of the events on Thursday, for all Friday events, on the Agenda page

As the agenda page details, day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  The Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice will feature Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

October 6, 2021 in Drug Offense Sentencing | Permalink | Comments (2)

"Ring and Hurst Retroactivity: Deconstructing Divergent Doctrines"

The title of this post is the title of this recent article from Melanie Kalmanson and Nathan Molina available via SSRN.  Here is its abstract:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment.  While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively.  This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively.

Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points of confusion arose surrounding retroactivity: (1) Was Hurst a direct result of Ring?  If so, should it apply retroactively?  (2) What role did the Eighth Amendment play in both Ring and Hurst?  (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?  (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense?  By exploring and explaining these sources of confusion, this Article aims to help clarify the broader landscape of modern capital sentencing jurisprudence.

October 6, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Tuesday, October 5, 2021

Missouri completes execution of inmate who claimed to be intellectually disabled

As reported in this NBC News piece, "Missouri on Tuesday executed Ernest Johnson, despite claims by his attorney and death penalty opponents that he had an intellectual disability and killing him violated the Constitution." Here is more:

Johnson, 61, who was convicted in the murders of three convenience store employees almost three decades ago, was executed by lethal injection at a state prison in Bonne Terre. He was pronounced dead at 6:11 p.m. local time, a spokeswoman for the state department of corrections said.

Pope Francis, two members of Congress and former Democratic governor Bob Holden were among those who spoke out against the execution.

On Monday Gov. Mike Parson, a Republican, denied Johnson clemency and said the state would carry out the execution. The U.S. Supreme Court denied an application for a stay of execution Tuesday.

In a filing to the high court Tuesday, Johnson's legal team reiterated IQ tests have indicated he had the intellectual capacity of a child and wrote that there would be "no tangible harm" if his execution was delayed while questions over whether lower courts had "constitutionally considered" his disability were further explored.

As revealed in this SCOTUS order, no Justices dissented from the denial of a stay and denial of cert before the execution.

October 5, 2021 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (7)

Wooden it be remarkable if the Constitution again has something to say about applying ACCA?

For some reason, the Supreme Court's Wooden case concerning proper application of the Armed Career Criminal Act prompts me to make silly post titles.  My prior recent post, "Wooden, SCOTUS on the ACCA, not so free and easy," riffed poorly on song lyrics, while today I am trying a bad pun.  The question within the punny title here is driven by the fact that the Supreme Court has previously blown up part of ACCA based on Fifth Amendment vagueness problems (Johnson from 2015) and has also shaped its application of the statute based on Sixth Amendment jury right worries (Shepard from 2005).  So, perhaps unsurprisingly, during SCOTUS oral argument yesterday in Wooden, a number of Justices raised both Fifth and Sixth Amendment concerns about  courts having to figure out the reach of ACCA's extreme 15-year mandatory minimum for unlawful gun possession based on just whether and when a defendant on a prior crime spree has committed predicate offenses "on occasions different from one another."

I am disinclined to make bold predictions after listening to the oral argument, though I am tempted to predict that the defendant will prevail and the question is going to be on what ground(s). I reach that view because even Justice Alito seemed to be struggling to figure out how to give meaningful content to a key phrase that determines at least five years of federal imprisonment.  Here are a few choice quotes from Justice Alito: "This seems to me to be a nearly impossible question of statutory interpretation because the term 'occasion"' does not have a very precise meaning.";  "I have no idea what an occasion is or what a criminal opportunity is or what a criminal episode is."  If Justice Alito cannot come up with a pro-prosecution reading of the applicable statute, I doubt other Justices will be able to do so -- especially because many of the other Justices who generally tend to favor the government also tend to be fans of the Fifth and/or Sixth Amendment doctrines in play in this case (I am thinking here of the Chief Justice as well as Justices Thomas and Gorsuch).

For some other views on the argument, here is a round up of some of the press coverage I have seen:

From Bloomberg Law, "Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal"

From Courthouse News Service, "Burglary of many units in one facility poses counting challenge at sentencing"

From Law360, "Justices Dubious About Feds' 'Career Criminal' Interpretation"

From SCOTUSBlog, "A hypothetical-filled argument proves how tricky it is to define an 'occasion'"

October 5, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"But What Does It Mean? Defining, Measuring, and Analyzing Desistance From Crime in Criminal Justice"

The title of this post is the title of this new NIJ-published chapter authored by Michael Rocque.  Here is part of its executive summary

Research on crime over the course of an individual’s life has increased in the last 30 years both in scope and specificity.  One focus area that has emerged from this work is what scholars call “desistance from crime.”  Generally, desistance is understood to mean the reduction in criminal behavior that occurs after a person reaches adulthood.

But exactly what desistance is remains unclear, as varying definitions and measurement strategies have evolved over time. Early scholarship tended to view desistance as an event — that is, the termination of offending or end of a criminal career.  More recent definitions suggest that desistance is instead a process by which criminality declines over time.  Because inconsistent definitions lead to varying measurement strategies, it is difficult to come to conclusions about desistance.

The overall goal of this white paper is to provide grounded recommendations for policy and practice.  To do that, the paper reviews definitions of desistance used in the literature and then offers an updated, theoretically grounded definition as a foundation for future work: Desistance is “the process by which criminality, or the individual risk for antisocial conduct, declines over the life-course, generally after adolescence.”

The paper discusses how researchers have measured and modeled desistance and explores the implications of these strategies.  Which ways of measuring desistance get closest to the phenomenon of interest?  Which are most likely to advance our understanding of why people exit a criminal life and how we can facilitate that process?  These guiding questions provide a framework for the paper.

Finally, this white paper provides an overview of unresolved issues — such as the choice between surveys and official records, quantitative and qualitative methods, types of samples, and various modeling techniques — and offers detailed recommendations for policymakers, practitioners, and scholars who are seeking to examine and promote desistance from crime.

October 5, 2021 in Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, October 4, 2021

Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

The AP has effective coverage of the latest sentencings of January 6 rioters, and they highlight how different judges have different takes on how these unique offenders ought to be punished.

From Friday: "Judge questions whether Jan. 6 rioters are treated unfairly." Excerpts:

Rejecting the recommendation of prosecutors, a federal judge sentenced a Jan. 6 rioter to probation on Friday and suggested that the Justice Department was being too hard on those who broke into the Capitol compared to the people arrested during anti-racism protests following George Floyd’s murder.

U.S. District Court Judge Trevor McFadden questioned why federal prosecutors had not brought more cases against those accused in 2020 summertime protests, reading out statistics on riot cases in the nation’s capital that were not prosecuted.  “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” McFadden said during Danielle Doyle’s sentencing for entering the Capitol on Jan. 6 with a throng of other rioters.  Prosecutors recommended two months of home confinement for Doyle, who is from Oklahoma.

The statements by McFadden, an appointee of former President Donald Trump, were a major departure from the other federal judges overseeing insurrection cases so far, despite other Trump appointees on the court assigned to the hundreds of cases.... 

The Associated Press analyzed more than 300 criminal cases stemming from the protests incited by Floyd’s murder, showing that many leftist rioters had received substantial sentences, rebutting the argument that pro-Trump defendants were treated more harshly than Black Lives Matter protesters....

By contrast, U.S. District Judge James Boasberg on Friday sentenced another rioter, Andrew Ryan Bennett, to three months of home confinement, accepting the request by prosecutors. Bennett was accused of espousing conspiracy theories about the election and used “pugnacious rhetoric” in posting about his plans to be in Washington. 

From Monday: "Judge slams claims that Jan. 6 rioters are treated unfairly." Excerpts:

A Texas man who joined the mob that stormed the U.S. Capitol on Jan 6. was sentenced Monday to 45 days behind bars even though prosecutors weren’t seeking jail time, after the judge blasted comparisons between the riot that day and the Black Lives Matter protests over racial injustice.

U.S. District Judge Tanya Chutkan called it a false equivalence “to compare the actions of people protesting, mostly peacefully, for civil rights” to the mob that “was trying to overthrow the government.”  She said doing so “ignores the very real danger that the Jan. 6 riots pose to the foundation of our democracy.”...

Chutkan, who was appointed by former President Barack Obama, said she “flatly” disagreed with the suggestion raised by “some people” that the Jan. 6 defendants were being treated unfairly.  In fact, she said she believes those who joined the pro-Trump mob were being treated more leniently than many other defendants.

Some of many prior related posts:

October 4, 2021 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (6)

REMINDER: This week for "Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

Understanding-Drug-Sentencing_for-web_update-768x281I flagged here a few weeks ago the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which is now only days away as it is set for October 7-8, 2021.  This event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment," and I will here note again the main event page and this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be. Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts. Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.

Registration

Separate registrations are provided for each day’s events.  Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, an exciting new addition to the event schedule is a screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  One can register for this event, taking place Thursday, October 7 at 5pm EDT.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate.  But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

October 4, 2021 in Drug Offense Sentencing | Permalink | Comments (0)

Pope Francis among those urging Missou Gov to grant clemency to offender scheduled to be executed tomorrow ... UPDATE: Gov denies clemency

As detailed in this new AP article, "Pope Francis has joined the chorus of people calling on Missouri Gov. Mike Parson to grant clemency to a death row inmate who is set to be executed for killing three people during a 1994 convenience store robbery."  Here is more:

In a letter last week, a representative for Pope Francis wrote that the pope “wishes to place before you the simple fact of Mr. Johnson’s humanity and the sacredness of all human life,” referring to Ernest Johnson, who is scheduled to be executed at 6 p.m. Tuesday at the state prison in Bonne Terre, about 50 miles south of St. Louis.

Parson, a Republican, has been considering whether to reduce the 61-year-old Johnson’s sentence to life in prison without the possibility of parole.  Johnson’s attorney, Jeremy Weis, said executing him would violate the Eighth Amendment to the U.S. Constitution, which prohibits executing intellectually disabled people.  He said multiple IQ tests and other exams have shown that Johnson has the intellectual capacity of a child. He also was born with fetal alcohol syndrome and in 2008, he lost about 20% of his brain tissue to the removal of a benign tumor.

Racial justice activists and two Missouri members of congress — Democratic U.S. Reps. Cori Bush of St. Louis and Emmanuel Cleaver of Kansas City — have also called on Parson to show mercy to Johnson, who is Black.

The Missouri Supreme Court in August refused to halt the execution, and on Friday, it declined to take the case up again. Weis and other attorneys for Johnson on Monday asked the U.S. Supreme Court for a stay of execution.  “This is not a close case — Mr. Johnson is intellectually disabled,” they wrote in their court filing.

Johnson admitted to killing three workers at a Casey’s General Store in Columbia on Feb. 12, 1994 — manager Mary Bratcher, 46, and employees Mabel Scruggs, 57, and Fred Jones, 58.  The victims were shot and attacked with a claw hammer. Bratcher also was stabbed in the hand with a screwdriver....

Johnson was sentenced to death in his first trial and two other times.  The second death sentence, in 2003, came after the U.S. Supreme Court ruled that executing the mentally ill was unconstitutionally cruel.  The Missouri Supreme Court tossed that second death sentence and Johnson was sentenced for a third time in 2006.

If the execution takes place as scheduled, it would be the seventh in the U.S. this year but the first not involving either a federal inmate or a prisoner in Texas.  The peak year for modern executions was 1999, when there were 98 across the U.S.  That number had gradually declined and just 17 people were executed last year — 10 involving federal prisoners, three in Texas and one each in Georgia, Tennessee, Alabama and Missouri, according to a database compiled by the Death Penalty Information Center.

UPDATE: This AP piece reports that the Missouri Gov was unmoved:

Missouri Gov. Mike Parson on Monday declined to grant clemency to death row inmate Ernest Johnson, despite requests for mercy from the pope, two federal lawmakers and thousands of petition signers.

October 4, 2021 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)

SCOTUS releases first big order list of October Term 2021 ... with little of particular sentencing note

It is the first Monday in October, which means SCOTUS gets its first big day of the new Term started with this big order list full of a whole lot of denials of certiorari in cases that stacked up through the summer.  As noted in this prior post, the Justices released a short order last week in which it granted cert in a handful of new cases (including a crack resentencing case).  So, the new order list is just a few GVRs, more cert denials than I can count, and also a few statements by Justices Breyer and Sotomayor concerning a few criminal case cert denials.

Notably, especially because SCOTUS is hearing another ACCA case this morning, the case prompting the most GVRs on this new SCOTUS order list is the Borden ACCA case from last term (basics here).  In addition, one of the statements from Justice Sotomayor is in an ACCA case from the Sixth Circuit.  The Armed Career Criminal Act is clearly that confusing federal law that is the ugly jurisprudential gift that keeps on giving.

In this post last week, I flagged some notable sentencing issues on SCOTUSblog's "Petitions to Watch."  It appears that cert was denied in roughly half of the cases listed in that prior post, but the other cases do not appeal to be mentioned on this first order list.  If those other cases have been relisted for more consideration by the Justices, that bodes well for a few more notable sentencing cases being added to the SCOTUS docket this Term.  As always, stay tuned.

UPDATE: Over at Crime & Consequences, Kent Scheidegger has a brief criminal-justice review of the order list today titled "The Long List from the Long Conference"

October 4, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, October 3, 2021

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault.  The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment.  The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed.  With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn’t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose).  Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

The majority’s conclusion stems from its premise that “it doesn’t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9.  I reject this premise.  Mr. Wimberly is presently confined under the Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly’s present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

October 3, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

October 3, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

More great Inquest materials, including critical overview of federal drug control history

I hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so very blogworthy.  Since my last posting, the site has posted these great new reads:

From Sharlyn Grace, "‘Organizers Change What’s Possible’: Before bold, decarceral changes can become a reality, community organizers tirelessly move the policy needle in other ways. Here’s how they did it in Illinois."  

"‘We Are Men’: On the 50th anniversary of a flashpoint of the American penal system, the cries of Attica still resonate today."

From Patricia Richman & Diane Goldstein, "Follow the Science: Federal law enforcement has long called the shots in the field of drug scheduling. But in the case of fentanyl analogues, Congress has a chance to lead — by doing nothing."

The last of these pieces provides an especially effective account of the federal government's "50-year campaign to tilt the balance in drug-control decision making away from science and towards enforcement, criminalization, and incarceration."  Here is a taste (with links from the original):

Since the dawn of modern drug policy, the United States has pretended to hew to a dual approach to illicit drugs, one that emphasizes law enforcement and public health in roughly equal measure.  That duality is a farce: Federal funding for enforcement has historically dwarfed public health and other demand-reduction strategies, and 50 years of the same approach to drug policy have shown that the whole enterprise has been a spectacular failure.

To this day, headlines still abound with reported large-scale drug seizures and ever-present arrests, but none of this has reduced the demand that drives the supply.  The overdose crisis, which has run parallel to the war on drugs for decades, is “the clearest indictment so far of the failure of prohibition to curb drug use,” as experts in drug policy recently put it. Meanwhile, tens of millions of Americans continue to struggle with substance-use disorder and its consequences.  And enforcement policies have come at an unfathomable cost, sending far too many young men of color to crowd our prisons, leaving broken families and communities in their wake.

October 3, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, October 2, 2021

"Financial Health and Criminal Justice: The Stories of Justice-Involved Individuals and Their Families"

The title of this post is the title of this notable new report from the Financial Health Network. Here is how its introduction gets started:

The United States has the highest prison and jail population, and the highest incarceration rate, in the world.  In 2020, approximately 2.3 million Americans were incarcerated, and, every year, over 10 million people are arrested or charged with crimes.  While these numbers are staggering in their size, they are made up of individuals — each with a unique and complicated human story, each with a family or social network impacted by their involvement in the criminal justice system.  The consequences of involvement with the U.S. criminal justice system run deep and wide — socially, physically, psychologically, and financially — often lasting well beyond release, and usually impacting more than just the individual arrested or incarcerated.  In addition, the criminal justice system disproportionately impacts people from low-income communities and communities of color.

The Financial Health Network presents a look into some of these lives, with particular focus on how their financial health affects their ability to navigate the criminal justice system, and how that system affects their financial health once they’re able to re-enter society.  In partnership with the University of Southern California’s (USC) Center for Economic and Social Research, we collected stories directly from 36 individuals impacted by this system, and learned how navigating the criminal justice system impacts the financial health of justice-involved individuals and their families.  These individuals and their families must traverse a complex and expensive set of processes, whether they’re managing the initial financial shock of arrest and detainment, juggling associated financial obligations, searching for limited employment opportunities upon release, or handling the added expenses or lost income of having a family member who is incarcerated.  Through all this, these individuals and their families often rely on their social networks to get by.

The following five briefs examine the experiences of individuals and their families as they manage the multiple costs of pretrial, incarceration, and re-entry, as well as the challenges associated with securing income, employment, and accessing financial services upon their release.

October 2, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Friday, October 1, 2021

After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?

I was very excited when earlier this week the US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences.  I was also pleased to see this follow-up press release from my GOP senator headlined "Portman, Senate Co-Sponsors Laud House Passage of EQUAL Act."  Here is the text:

U.S. Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT), the bipartisan Senate sponsors of the EQUAL Act, issued the below statement following the passage of the EQUAL Act in the House of Representatives by a bipartisan vote of 361-66.

“Today, House Republicans and Democrats joined together in passing the EQUAL Act, legislation that will once and for all eliminate the unjust federal crack and powder cocaine sentencing disparity.  Enjoying broad support from faith groups, civil rights organizations, law enforcement, and people of all political backgrounds, this commonsense bill will help reform our criminal justice system so that it better lives up to the ideals of true justice and equality under the law.  We applaud the House for its vote today and we urge our colleagues in the Senate to support this historic legislation.”

Ohio eliminated the crack-powder sentencing disparities back in 2011.

Along with bipartisan support in Congress, this landmark legislation has support from groups across the political spectrum, including the National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Digital Liberty, Faith and Freedom Coalition, ALEC Action, R Street Institute, National Association for Public Defense, American Civil Liberties Union, Sentencing Project, Fair Trials, FreedomWorks, Center for American Progress, Drug Policy Alliance, Jesuit Conference, Black Public Defender Association, Dream Corps JUSTICE, Federal Public and Community Defenders, Innocence Project, National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, Taxpayers Protection Alliance, and Tzedek Association.

So three notable GOP Senators from pretty red states are co-sponsors of the EQUAL Act in the Senate, and a wide array of right-leaning advocacy groups are also eager to see this pass.  And, to highlight again the House vote specifics, roughly twice as many GOP reps voted for the EQUAL Act as voted against it.  If this same breakdown happened on the Senate side, there would be over 80  total votes for passage of the EQUAL Act in the Senate.  Even if only half of GOP Senators support the EQUAL Act, that makes 75 votes in the Senate.  And, of course, only 10 GOP votes would be needed to end any filibuster, which I presume Senator Cotton would launch to gum up the works, to permit a floor vote.

So, if ever there was a federal criminal justice reform bill that should be a relatively easy lift, I would hope this is it.  And yet, I have not seen any advocates talk as if Senate action is imminent or even all that likely.  As I mentioned to a Vice News reporter who wrote here about the House vote, an average of more than four persons are sentenced in federal court for crack offenses every single week day, and many tends of thousands of (disproportionately black) offenders have been sentenced unfairly now for a full 35 years since the crack/powder disparity first became law way back in 1986.  There is no need or value to waiting to finally make all federal cocaine offenses subject to the same sentencing rules, and so I hope the Senate might move swiftly.  But, as is always the case it seems when in comes to Congress, I do not think there is reason to be optimistic.  Sigh.

(Oh, and more more point while I am bemoaning Beltway activities (or lack thereof): even if the EQUAL Act were to move forward quickly in the Senate, I do not think it currently provides emergency authority for the US Sentencing Commission to change the crack guidelines AND the US Sentencing Commission is currently inert until Prez Biden nominates a slate of Commissioners and those folks garner Senate confirmation.  Fortunately, because the guidelines are advisory, district judges could ignore the disparate crack guidelines even while still in place after passage of the EQUAL Act.  But then again, those disparate guidelines can and should be ignored now, and yet they are still followed in many cases and still create a benchmark that shapes and distorts the sentencing process.)

October 1, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (3)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

TRAC releases intriguing new report on "Equal Justice and Sentencing Practices Among Federal District Court Judges"

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University is a research center that keeps track of a lot of federal criminal case processing data. Today TRAC released this notable short data report under the title "Equal Justice and Sentencing Practices Among Federal District Court Judges." Here are snippets from the start and end of the report:

This report examines very recent data on federal trial judges and their sentencing practices. The existence of judge-to-judge differences in sentences of course is not synonymous with finding unwarranted sentencing disparity....  But a fair court system always seeks to provide equal justice under the law, working to ensure that sentencing patterns of judges not be widely different when they are handling similar kinds of cases.

In reality, sometimes the goal of equal justice under the law is achieved, and other times the actual sentences handed down depart markedly from this goal. Using case-by-case, judge-by-judge, data updated through December 2020, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur, and courthouses where there is wide agreement in sentencing among judges.

While special circumstances might account for some of these differences, half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.

Results further showed that currently seven (7) federal courthouses out of 159 compared had perfect agreement among judges in the typical or median sentences assigned. In an additional thirty (30), judge-to-judge sentences differed by six months or less.... At the other extreme, five (5) courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench....

This study largely replicates the findings from TRAC's first national judge-by-judge examination of the differences among federal judges in sentencing practices that appeared in the Federal Sentencing Reporter. That study was published almost a decade ago. While it is true that some specific courthouses show greater agreement today, others show less agreement. Many of these changes appear to reflect changes in the judges currently serving there.

Yet answering the question of whether significant intra-judge differences in sentencing practices exist is not sufficient to establish that such differences are indeed unwarranted sentencing disparities. Much more research and a great deal more time is needed for a thorough examination of the actual details of judge-by-judge sentencing patterns.

September 30, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Recidivism of Federal Offenders Released in 2010"

Cover_2021-recidivism-overviewAs I have said repeatedly over the last three years, it is has been great to see that the US Sentencing Commission can continue to do a lot of needed and important data analysis even as its policy work it necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example was released today in this form of this big new report titled "Recidivism of Federal Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted below:

Overview

This report is the first in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI).  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for offenders released in 2010 to federal offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders. The final study group of 32,135 offenders satisfied the following criteria:

  • United States citizens;
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010;
  • Not reported dead, escaped, or detained;
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

  • The recidivism rate remained unchanged for federal offenders released in 2010 compared to offenders released in 2005 despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision....
  • For offenders who were rearrested, the median time to arrest was 19 months. The largest proportion (18.2%) of offenders were rearrested for the first time during the first year following release. In each subsequent year, fewer offenders were rearrested for the first time than in previous years. Most offenders in the study were rearrested prior to the end of supervision terms....
  • Assault was the most common (20.7%) offense at rearrest.  The second most common offense was drug trafficking (11.3%), followed by: larceny (8.7%), probation, parole, and supervision violations (8.1%), and administration of justice offenses (7.5%).
  • Combined, violent offenses comprised approximately one-third of rearrests; 31.4 percent of offenders were rearrested for assault (20.7%), robbery (4.5%), murder (2.3%), other violent offense (2.3%), or sexual assault (1.6%).
  • Similar to findings in its previous studies, the Commission found age and Criminal History Category (CHC) were strongly associated with rearrests....  Combined, the impact of CHC and age on recidivism was even stronger.  During the eight-year follow-up period, 100 percent of offenders who were younger than 21 at the time of release and in CHC IV, V, and VI (the most serious CHCs) were rearrested.  In contrast, only 9.4 percent of offenders in CHC I (the least serious CHC) who were aged 60 and older at release were rearrested.
  • Offenders sentenced for firearms and robbery offenses had the highest rearrest rates during the eight-year follow-up period, with 70.6 percent and 63.2 percent, respectively.  In contrast, offenders sentenced for fraud, theft, or embezzlement had the lowest rearrest rate (35.5%).

September 30, 2021 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 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 (6)

Wednesday, September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how.  This question is far more complicated than it might seem.  We could cut the prison population in half, for example, by drastically shortening sentences.  Or we could reduce prison admissions.  Or we could do both.  And we could do either or both for countless combinations of criminal offenses.  Moreover, even when they reach the same numeric target, these strategies are not equivalent.  They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect.  To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.

This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies.  The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself.  We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing.  Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%.  Finally, it identifies the best performing strategies against each metric.

The results have several broader takeaways.  First, the optimal approach to decarceration depends heavily on which metrics we value most.  The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses — a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds.  Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities.  Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.

September 29, 2021 in National and State Crime Data, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Two misdemeanants get 45-day jail terms at latest January 6 riot sentencings

In this post a few weeks ago, I noted that federal prosecutors had started talking up the prospect of seeking jail time even in some of the January 6 riot cases that were resolved through only misdemeanor charges.  Today, as reported in this new AP piece, headlined "Ohio friends sentenced to 45 days for U.S. Capitol riot Jan. 6," jail time for two January 6 misdemeanants became a reality:

Federal prosecutors assert that everybody who stormed the U.S. Capitol on Jan. 6 should be evaluated individually when deciding whether a prison sentence is warranted.  On Wednesday, a judge accepted the Justice Department’s assessment that two friends from Ohio fall into a category of rioters who deserve to be incarcerated.

U.S. District Judge James Boasberg sentenced Derek Jancart and Erik Rau to 45 days in jail. Prosecutors had recommended four months of imprisonment for both men.  They must report to jail by Nov. 29.  The jail sentences for Jancart and Rau could become benchmarks for how the courts resolve many other Capitol insurrection prosecutions, a caseload that tops 600 defendants and grows by the week.

Like most of the insurrectionists who have pleaded guilty so far, Jancart and Rau aren’t accused of engaging in any violence or destruction at the Capitol or of conspiring to stop Congress from certifying President Joe Biden’s electoral victory. Defense attorneys compared their actions to those of other Capitol riot defendants who avoided prison sentences after pleading guilty to non-violent misdemeanors.

But prosecutors cited several factors in arguing that prison, not probation, was the appropriate sentence for both men — and will be in many other cases.  They said Jancart, an Air Force veteran, prepared for violence on Jan. 6 by bringing a gas mask and two-way radios to Washington. Rau, a steel mill worker, brought a medical kit and Kevlar-lined gloves.

They said Jancart and Rau spent 40 minutes inside the Capitol, reaching House Speaker Nancy Pelosi’s conference room. Jancart celebrated the violence on social media and didn’t show any remorse when the FBI arrested him, according to prosecutors.  They said Rau screamed, “We have you surrounded!” at police officers and shouted, “Go, go, go!” and “Yeah, they just pushed through the guards!” Those statements are “akin to inciting a riot and contributed to the environment of terror on that day,” prosecutors said.

“This was not a protest,” prosecutors wrote. “And it is important to convey to future rioters and would-be mob participants — especially those who intend to improperly influence the democratic process — that their actions will have consequences.”

The judge told Jancart and Rau that they and other rioters tried to undermine the peaceful transfer of power after a democratic election.  “There are few actions that are as serious as the one this group took on that day,” Boasberg said.

Jancart and Rau apologized and expressed remorse for their actions. “I did get caught up in the moment,” Jancart said.  “I just kind of followed the crowd and let my curiosity get the best of me.”

“There is no excuse for my actions on Jan. 6,” Rau said. “I 100% know better than to do what I did that day.”

Jancart was arrested at his Ohio home in February. Rau was arrested in July. Both men pleaded guilty to disorderly conduct in a Capitol building, a misdemeanor that carries a maximum sentence of six months’ imprisonment.

Over 80 defendants have pleaded guilty to riot-related offenses, but only seven others besides Jancart and Rau have been sentenced so far. A Florida man who entered the U.S. Senate chamber was sentenced to eight months in prison.  Two were sentenced to time served after six months in jail. Two were sentenced to house arrest. Two others received probation.

Probationary sentences “should not necessarily become the default,” prosecutors wrote.  “Those who trespassed, but engaged in aggravating factors, merit serious consideration of institutional incarceration. While those who trespassed, but engaged in less serious aggravating factors, deserve a sentence more in line with minor incarceration or home confinement,” they added....

More than 50 other rioters are scheduled to be sentenced before the end of 2021.

Some of many prior related posts:

September 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (2)

Register for 2021 Menard Family Lecture on Drug Policy and Criminal Justice and other great drug sentencing events

Menard-Lecture_for-u.osu_.edu_updated-768x281In this post last week, I noted the exciting event taking place on October 7-8 titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  In addition to again highlighting the full symposium (and urging everyone to register for all the panels), I wanted to be sure to give some extra attention to the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" scheduled for Thursday, October 7 from 12:30-2pm EDT.  Here again is the summary description of a discussion that I will have the honor of moderating (along with this registration link):

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, I wanted also to note an exciting new addition to the event schedule with a film screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate. But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

September 29, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, September 28, 2021

Texas completes state's third execution of 2021

As reported in this local article, "Texas carried out its third execution of the year Tuesday night, lethally injecting Rick Rhoades for killing two men in their Houston-area home 30 years ago."  Here is more:

I speculated in this post, wrongly, that death row inmates might all be able to secure a stay of execution after SCOTUS granted cert in Ramirez to determine religious liberty rights in the Texas execution chamber.  A couple of weeks ago, as noted here, another Texas inmate did get an execution stay based on religion claim SCOTUS is considering in Ramirez.  But it seems Rhoades was either uninterested or unable to make a Ramirez claim, and his execution went forward as scheduled.

September 28, 2021 in Death Penalty Reforms | Permalink | Comments (1)

USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns

Jason-voorhees-friday-the-13th_1I had heard rumors that the US Sentencing Commission was working on a new sentencing data tool for federal sentencing judges, and today the USSC unveiled here what it calls the Judiciary Sentencing INformation (JSIN).  Here is how the USSC generally describes JSIN (which is called "jason" in the helpful video the USSC has on its site):  

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.  

This all sounds great and interesting, and JSIN seems relatively easy to navigate and quite useful until one notices these notable data choices spelled out in the FAQ provided by the USSC (with my emphasis added):

After excluding cases involving a §5K1.1 substantial assistance departure, JSIN next provides a comparison of the proportion of offenders sentenced to a term of imprisonment to those sentenced to a non-imprisonment sentence....

JSIN reports the average and median term of imprisonment imposed in months for cases in which a term of imprisonment was imposed. Probation sentences are excluded.

Though I am not a data maven, I can understand the general logic of excluding the 5K and probation cases from the JSIN data analysis. But, perhaps because I am not a data maven, I greatly fear that these data exclusion choices result in the JSIN platform being systematically skewed to report statistically higher average and median terms of imprisonment.  For example, if 94 imprisonment cases have an average prison term of, say, 50 months and 6 more cases were given probation, I think the true average sentence is 47 months, but JSIN is seemingly built to report an average of 50 months.  Though less predictable, I fear the exclusion of 5K cases also may create a kind of severity bias in the data reporting.

IN addition, I did not see any way to control for the application of mandatory minimum statutes, which also serve to skew judicial sentencing outcomes to be more severe.  If a case have a guideline range of 30 for a first offender, meaning a range of 97-121 months under the guidelines, but a 10-year mandatory minimum applies, the judge is duty-bound to impose a sentence of at least 120 months even if he might want to give 97 months or something a lot lower.  If that sentence of 120 months is treated in the averages like every other sentence, it looks like the judge wanted to give the top of the guideline range even though he gave the lowest sentence allowed by law.  In other words, without controlling for the distorting impact of mandatory minimums, these averages may not really reflect judicial assessments of truly justified sentencing outcomes but rather averages skewed upward by mandatory minimums.

I am not eager to beat up on the USSC for creating a helpful and easy-to-use data tool and for making this tool accessible to everyone online.  And I am hopeful that the exclusions and mandatory minimum echoes may only impact the data runs in relatively few cases and only a small amount.  But even if the impact is limited, I think it quite worrisome if this JSIN tool has a built-in and systemic "severity biases" due to its data choices.  If it does, when hear about JSIN, I am not going to imagine the heroic Jason Bourne, but rather the nightmarish Jason Voorhees.

September 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 — more than a quarter century ago! — sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ushering in decades more disproportionately severe crack sentences and extreme racial inequities in federal cocaine offense punishments.

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

September 28, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases updated "Compassionate Release Data Report" covering all of 2020 and first half of 2021

As detailed in prior posts here and here, a few months ago the US Sentencing Commission started releasing short data report titled "Compassionate Release Data."  Though these reports provide only some very basic accounting of the grants and denials of federal compassionate release motions nationwide, they still provide the only "official" accounting of who is getting relief and some of the basics surrounding their demographics. 

Exciting, the latest of these reports was released today at this link and "reflects compassionate release motions decided by the courts during calendar years 2020 and 2021 (January 1, 2020 - June 30, 2021)."  Table 1 of the report shows, perhaps unsurprisingly, that the number of these motions brought and the grant rate declined though the first six months of 2021.  I presume that could reflect the fact that lots of the strongest cases may have received release in 2020 and also concerns about COVID started declining as vaccines became available to federal prisoners.

As I have said before, I hope that the US Sentencing Commission not only continues to release more data on these cases, but also a lot more granular data and analyses about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) discuss which guidelines might be still producing excessively long sentences in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

September 28, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Some notable sentencing issues on SCOTUSblog's "Petitions to Watch" from long conference

Yesterday, the US Supreme Court had its "long conference" to consider the thousands of cert petitions that were fully briefed over the summer recess. SCOTUSblog has a long list of "Petitions We’re Watching" at this link, and here are just some of the sentencing-related ones that caught my eye:

Louisiana v. Hill, No.20-1587

(1) Whether a state may require convicted sex offenders to obtain and carry a state identification bearing the words “sex offender” without facially violating the First Amendment’s prohibition on compelled speech; and (2) whether a convicted sex offender has a First Amendment right not to be prosecuted for fraudulently altering a state identification card after scratching off a statutorily required sex offender designation.

Houston v. U.S., No. 20-1479

Whether a sentencing court must consider applicable sentencing factors codified in 18 U.S.C. § 3553(a) when deciding whether to impose a reduced sentence under Section 404(b) of the First Step Act.

Jackson v. Hudson, No. 21-347

Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.

Janis v. U.S., No. 21-68

(1) Whether Standard Condition 12 of the U.S. Sentencing Guidelines, codified in U.S.S.G. § 5D1.3(c)(12), unconstitutionally delegates authority to the probation officer; and (2) whether Standard Condition 12 is unconstitutionally vague.

Bryant v. U.S., No. 20-1732

Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.

Leontaritis v. U.S., No. 20-1614

(1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.

September 28, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 27, 2021

"Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?"

The title of this post is the title of this online panel scheduled for tomorrow and the third and final one in the terrific series of online panels that have been exploring in depth federal clemency powers and practices.  As I detailed in this prior post, this series is jointly organized by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. 

A whole lot of folks are doing great work putting this series together, and Margaret Love merits extra praise for her efforts and for helping to assemble writings on these timely topics in Volume 33, Issue 5 of the Federal Sentencing Reporter (which largely provides the foundation for these panels).  Here are more details about this final panel:

Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper?

Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom (register here)

This panel rounds out the theme of the series, by considering whether Donald Trump’s departure from past pardoning practices has paved the way for much-needed reforms in the process by which the president gets advice in pardon matters.  Jeffrey Crouch, author of the most comprehensive recent history of the pardon power, will offer an historical perspective on the pardon process, asking whether it has failed in recent years to serve its original purpose of promoting the rule of law and shielding the president from scandal. Rachel Barkow and Paul Larkin have both proposed moving the pardon process out of the Department of Justice to avoid the stranglehold of federal prosecutors, though each has proposed quite different advisory mechanisms with likely differing outcomes: Barkow would create an independent board of officials to receive applications, apply objective standards, and make recommendations to the president, while Larkin believes pardoning is best managed from inside the White House.  Margaret Love, who served as pardon attorney under Presidents George H.W. Bush and Bill Clinton, has argued that the process by which the president gets advice in pardon matters should stay in Justice but with significant structural changes.  These proposals are a hopeful sign that the future of the pardon power is brighter than its recent past.

Panelists:

Rachel Barkow, vice dean and Charles Seligson Professor of Law, New York University School of Law
Jeff Crouch, assistant professor of American politics, School of Public Affairs, American University
Paul J. Larkin Jr., Rumpel Senior Legal Research Fellow, The Heritage Foundation 
Margaret Love
, executive director, Collateral Consequences Resource Center and former U.S. Pardon Attorney

Moderator:

Douglas Berman, executive director, Drug Enforcement and Policy Center

September 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

R. Kelly now likely facing a long sentence after convictions on all federal sex trafficking charges

I have not been following the federal prosecution of R. Kelly closely, but a whole bunch of news alerts today let me know he is now entering the sentencing stage.  This CNN piece sets out the specifics of the guilty verdict: "Kelly was found guilty of nine counts -- one count of racketeering and eight counts of violating the Mann Act.  Of the 14 underlying acts for the racketeering count, he needed to be found guilty of at least two to be convicted of that count.  Jurors found prosecutors had proven all but two of the 14 underlying racketeering acts."  And, based in part on this NBC News account and other discussions of his wrongdoing, federal sentencing is likely to be grim for Mr. Kelly:

R. Kelly, the R&B superstar who has long been trailed by accusations of sexual misconduct and abuse, was found guilty Monday on all counts in a high-profile sex-trafficking case, capping a trial that featured hours of graphic testimony from the singer’s accusers.

Kelly, who has been in custody for much of the time since he was formally charged in 2019, was convicted on one count of racketeering and eight counts of violating the Mann Act, a law that bars the transport of people across state lines “for any immoral purpose.”

Kelly, best known for the 1996 hit “I Believe I Can Fly,” pleaded not guilty to all charges in the case. The singer, whose real name is Robert Sylvester Kelly, did not take the stand in his own defense.

The prosecutors in the trial, which centered around the allegations of six people, alleged that the singer was a serial sexual predator who abused young women as well as underage girls and boys for more than two decades. Prosecutors further alleged that the singer and his entourage led a criminal enterprise that recruited and groomed victims for sex, arranging for them to travel to concerts and other events across the U.S.

In a closing argument that lasted two days, Assistant U.S. Attorney Elizabeth Geddes accused Kelly and his entourage of using tactics from “the predator playbook” to control his victims. Kelly’s alleged tactics included confining victims in hotel rooms or his recording studio, managing when they could eat and use the bathroom, and forcing them to follow various “rules,” including demanding they call him “Daddy.”

“It is now time to hold the defendant responsible for the pain he inflicted on each of his victims,” Geddes said Thursday in federal court in Brooklyn.  “It is now time for the defendant, Robert Kelly, to pay for his crimes. Convict him.”...

​​The singer’s lawyers attempted to portray his accusers as “groupies” who sought to exploit his fame and take advantage of the #MeToo movement.  Deveraux Cannick, one of Kelly’s defense lawyers, argued that testimony from several of his client’s accusers was false, saying in his closing argument: “Where is the fairness to Robert? Where’s the integrity of the system?”...

“Surviving R. Kelly,” a Lifetime documentary series released in 2019 that featured testimony from several accusers, intensified calls for the singer to face legal consequences for his alleged pattern of abuse.  Kelly was previously acquitted on child pornography charges in 2008.

Though I doubt anyone will make a follow-up documentary titled "“Sentencing R. Kelly,” I will certainly plan to keep an eye on this case in the months to come because I suspect the feds will be seeking a pretty steep sentencing term (based on what should be severe guideline calculations) while the defense will surely seek a way below-guideline sentence.  The sentencing is apparently not scheduled until May 2022, so we will all have plenty of time to make predictions.

September 27, 2021 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (4)

FBI releases 2020 crime statistics showing increase in violent crime and decrease in property crime

HighAs set out in this press release, headlined simply "FBI Releases 2020 Crime Statistics," we now have the FBI's accounting of US crime dynamics in the crazy year of 2020.  The basic 2020 story of violent crime up and property crime down has been widely discussed, but these "official" particulars still matter.  Here are highlights from the FBI press release:

For the first time in four years, the estimated number of violent crimes in the nation increased when compared with the previous year’s statistics, according to FBI figures released today.  In 2020, violent crime was up 5.6 percent from the 2019 number. Property crimes dropped 7.8 percent, marking the 18th consecutive year the collective estimates for these offenses declined.

The 2020 statistics show the estimated rate of violent crime was 387.8 offenses per 100,000 inhabitants, and the estimated rate of property crime was 1,958.2 offenses per 100,000 inhabitants.  The violent crime rate rose 5.2 percent when compared with the 2019 rate; the property crime rate declined 8.1 percent.

These and additional data are presented in the 2020 edition of the FBI’s annual report Crime in the United States.  This report is available as downloadable spreadsheets and topic pages about offenses, arrests, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson.  (The FBI classifies arson as a property crime but does not estimate arson data because of variations in the level of participation by the reporting agencies.  Consequently, arson data is not included in the property crime estimate.)  The program also collects arrest data for the offenses listed above and 20 offenses that include all other crimes except traffic violations.

Of the 18,619 federal, state, county, city, university and college, and tribal agencies eligible to participate in the UCR Program, 15,897 agencies submitted data in 2020. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2020, there were an estimated 1,277,696 violent crimes. When compared with the estimates from 2019, the estimated number of robbery offenses fell 9.3 percent and the estimated volume of rape (revised definition) offenses decreased 12.0 percent.  The estimated number of aggravated assault offenses rose 12.1 percent, and the volume of murder and nonnegligent manslaughter offenses increased 29.4 percent.

  • Nationwide, there were an estimated 6,452,038 property crimes. The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates. Burglaries dropped 7.4 percent, larceny-thefts decreased 10.6 percent, while motor vehicle thefts rose 11.8 percent.

  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $17.5 billion in 2020.

  • The FBI estimated law enforcement agencies nationwide made 7.6 million arrests, (excluding those for traffic violations) in 2020.

  • The arrest rate for violent crime was 147.9 per 100,000 inhabitants, and the arrest rate for property crime was 267.3 per 100,000 inhabitants.

  • By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 6.3; robbery, 21.0; and aggravated assault, 116.8 per 100,000 inhabitants.

  • Of the property crime offenses, the arrest rate for burglary was 45.7 per 100,000 inhabitants; larceny-theft, 193.1; and motor vehicle theft, 25.5. The arrest rate for arson was 3.0 per 100,000 inhabitants.

  • In 2020, 13,377 law enforcement agencies reported their staffing levels to the FBI. These agencies reported that, as of October 31, 2020, they collectively employed 696,644 sworn officers and 309,135 civilians—a rate of 3.4 employees per 1,000 inhabitants.

September 27, 2021 in National and State Crime Data | Permalink | Comments (0)

Sunday, September 26, 2021

"Custodial Sanctions and Reoffending: A Meta-Analytic Review"

The title of this post is the title of this forthcoming publication in Crime & Justice authored by Damon Petrich, Travis Pratt, Cheryl Lero Jonson, and Francis Cullen. Here is its abstract:

Beginning in the 1970s, the United States began an experiment in mass imprisonment.  Supporters argued that harsh punishments such as imprisonment reduce crime by deterring inmates from reoffending.  Skeptics argued that imprisonment may have a criminogenic effect.  The skeptics were right.  Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.  Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation.  This finding is robust regardless of variations in methodological rigor, types of sanctions examined, and sociodemographic characteristics of samples.  All sophisticated assessments of the research have independently reached the same conclusion.  The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.”  Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism.  Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders.

September 26, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Washington Supreme Court rules 46-year minimum term for juve murderer "unconstitutional de facto life sentence"

The Supreme Court of the State of Washington issued an interesting opinion regarding juvenile sentencing rules late last week in State v. Haag, No. 97766-6 (Wash. Sept. 23, 2021) (available here). Here is how the majority opinion in Haag gets started:

It is well established that “children are different from adults” for sentencing purposes.  State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017).  When a child commits the crime of aggravated first degree murder, the federal and state constitutions, the enactments of our legislature, and our case law demand that such a child be treated differently from an adult.  Here, this body of law demands another resentencing hearing for Timothy Haag.

In 1995, Haag was sentenced to mandatory life without parole for a crime he committed at the age of 17.  In 2018, at a Miller-fix resentencing conducted pursuant to RCW 10.95.030, the resentencing court expressly found that “Haag is not irretrievably depraved nor irreparably corrupt.” 1 Verbatim Report of Proceedings (Jan. 19, 2018) at 25.  Yet the court resentenced Haag to a term of 46 years to life; the earliest that he could be released is at the age of 63.  Id. at 27.  Haag sought review in this court, arguing that the trial court erroneously emphasized retribution over mitigation and that his sentence amounts to an unconstitutional de facto life sentence.  We agree.

We hold that the resentencing court erred because it gave undue emphasis to retributive factors over mitigating factors. We also hold that Haag’s 46-year minimum term amounts to an unconstitutional de facto life sentence.  We reverse and remand for resentencing in accordance with this opinion.

September 26, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, September 24, 2021

"Sex Offender Registration in a Pandemic"

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

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

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

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

September 24, 2021 in Collateral consequences, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Sex Offender Sentencing | Permalink | Comments (3)

Law enforcement and prosecutor groups urge Prez Biden to commute sentence of all in home confinement cohort

Via email, I learned this morning about this new letter to Prez Biden from the groups Law Enforcement Leaders to Reduce Crime & Incarceration, Fair and Just Prosecution, and Law Enforcement Action Partnership. Here is how it starts:

We write as individuals and on behalf of our respective national organizations — Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — as it pertains to the approximately 4,000 individuals placed on home confinement pursuant the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, who face the continued threat of reincarceration due to the prior administration’s January 15, 2021, Office of Legal Counsel memo (“OLC memo”).  We are pleased to see reports that your Administration is beginning to consider commutations for individuals who have committed nonviolent drug offenses and have been placed on home confinement pursuant the CARES Act.  Joining members of Congress, justice reform advocates across the political spectrum, and companies that currently employ these individuals, we seek to add our law enforcement perspective and urge you to grant clemency to all individuals placed on home confinement pursuant the CARES Act — regardless of underlying offense or sentence.

Some of many prior related posts:

September 24, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 23, 2021

Notable new report spotlights onerous nature of electronic monitoring in US

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

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

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

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

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

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

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

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

Here is the introduction of the 54-page report:

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

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

September 23, 2021 in Criminal Sentences Alternatives, Data on sentencing, Race, Class, and Gender, Reentry and community supervision, Technocorrections | Permalink | Comments (1)

"How often does a judge end up sentencing someone for breaking a law the judge personally disagrees with?"

The question in the title of this post is the "September Question of the Month" from the National Judicial College emailed as "an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad."  Here are the results, as reported here, for this "informal, non-scientific one-question survey":

Of the 350 NJC alumni who responded, nearly 95 percent said it had happened to them either a few times (55 percent), more than a few times (27 percent) or often (12 percent). Only 5 percent of the judges said they had never had to make a ruling that conflicted with their personal beliefs.

Among the roughly 100 judges who left comments, a common sentiment was that a judge’s job is to apply the law to the situation at hand; judges can’t write the statutes.  “It does not matter how I feel concerning the matter before me,” wrote one anonymous judge.  “My job is to interpret the law as put in place by the legislature, whether I agree with it or not.”  Circuit Judge Michael E. Raiden of Hardee County (Florida), was even more definite: “My subjective personal beliefs … are simply irrelevant.”

Some judges who commented provided examples of categories of laws that conflicted with their personal beliefs. These included:

  • Marijuana and other drug usage/possession
  • Possession of firearms or other weapons
  • Mandatory minimum sentencing

One anonymous judge said marijuana prohibitions “were founded on a lack of scientific analysis and led to more Fourth Amendment confusion than any other law in my lifetime.”

Another judge seemed to disapprove of a law against possession of a firearm.  The judge said the law carried a mandatory minimum five-year prison sentence without the possibility of parole, probation or suspension of sentence, regardless of whether the weapon was property registered.

Connecticut Superior Court Judge Eddie Rodriguez Jr. said mandatory minimum sentences are “an affront to judicial independence and … a violation of the separation of powers….”

Both the question as framed and this discussion of responses leaves me a bit unsure if the goal was to assess whether judges had to enter convictions for what they thought should not be crimes or merely had to impose sentences they thought inappropriate.  I sense both sorts of concerns were part of the answers, but this ambiguity is perhaps a useful reminder of how challenging it can be to make precise inquiries about judicial sentiments.

September 23, 2021 in Who Sentences | Permalink | Comments (1)

"Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

Understanding-Drug-Sentencing_for-web_update-768x281After pandemic delays in the hope we could do an in-person event, I am a bit sad that a conference organized by the Drug Enforcement and Policy Center and the Academy for Justice now set for October 7-8, 2021, is still going to have to be on-line.  But, of course, the upside is that everyone all over the country and the world can now attend this event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment." The main event page is here, with this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be. Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts. Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.

Registration

Separate registrations are provided for each day’s events. Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium (exactly two weeks from today), there will be the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

September 23, 2021 in Drug Offense Sentencing | Permalink | Comments (0)

NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct

A helpful reader made sure I did not miss this notable unanimous opinion by the Supreme Court of New Jersey in State v. Melvin, NO A-44-19 (N.J. Sept. 23, 2021) (available here).  Sentencing fans and long-time readers should know why I think this ruling is spot-on and today's must-read.  Here is how the opinion gets started:

One of the most important tenets of our criminal justice system is the finality of a jury’s verdict of acquittal. These consolidated appeals test that principle through a common legal issue: whether a trial judge can consider at sentencing a defendant’s alleged conduct for crimes for which a jury returned a not guilty verdict.

In State v. Melvin, the jury found Melvin guilty of second-degree unlawful possession of a handgun and, after two trials, not guilty of the most serious charges against him, including first-degree murder and first-degree attempted murder.  At his second sentencing, the trial court -- notwithstanding the jury’s not-guilty verdicts on the murder charges -- determined that the evidence at trial supported the conclusion that Melvin shot the victims.  Citing United States v. Watts, 519 U.S. 148 (1997), the trial judge found that it was within the court’s broad discretion at sentencing to consider all circumstances of the case, including evidence that Melvin was the shooter.  Despite the jury’s verdict, the trial court found that Melvin not only possessed the weapon, but used it to shoot three people.  The trial court sentenced Melvin to a term of sixteen years’ imprisonment with an eight-year period of parole ineligibility.  The Appellate Division affirmed that sentence.

In State v. Paden-Battle, in a trial before the same judge who presided over Melvin’s case, the jury found Paden-Battle guilty of kidnapping, conspiracy to commit kidnapping, and felony murder. The jury acquitted Paden-Battle of the remaining seven counts, including first-degree murder and conspiracy to commit murder.  At sentencing, the trial judge again relied on Watts to make findings of fact, by a preponderance of the evidence, that Paden-Battle, despite having been acquitted of the most serious murder charges, was the mastermind who orchestrated the victim’s murder.  The trial court stated that Paden-Battle falsified her testimony and found that she was the moving force behind the murder and ordered her co-conspirators to act.  The trial court sentenced Paden-Battle to a sixty-year sentence. On appeal, the Appellate Division vacated Paden-Battle’s sentence and remanded the matter for resentencing, holding that the trial court enhanced her sentence based on its belief -- a belief contrary to the jury’s verdict -- that Paden-Battle ordered the execution.

We granted the petitions for certification in both cases and now reverse in Melvin and affirm in Paden-Battle.  Article I, Paragraph 1 of the New Jersey Constitution bestows upon all citizens certain natural and unalienable rights.  From those rights flows the doctrine of fundamental fairness, which “protects against arbitrary and unjust government action.” State v. Njango, 247 N.J. 533, 537 (2021).  For the reasons stated below, we hold today that fundamental fairness prohibits courts from subjecting a defendant to enhanced sentencing for conduct as to which a jury found that defendant not guilty.

September 23, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)