Thursday, January 10, 2019

"Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018"

Cover-Fair-Chance-Reform-2018The title of this post is the title of this notable new report from the Collateral Consequences Resource Center to document the laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record. Here is the report's executive summary:

* In 2018, 30 states and the District of Columbia produced 56 separate laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and elsewhere.  Many of these new laws enacted more than one type of reform.  This prolific legislative “fair chance” track record, the high point of a six-year trend, reflects the lively on-going national conversation about how best to promote rehabilitation and reintegration of people with a criminal record.

* As in past years, approaches to restoring rights varied widely from state to state, both with respect to the type of relief, as well as the specifics of who is eligible, how relief is delivered, and the effect of relief.  Despite a growing consensus about the need for policy change to alleviate collateral consequences, little empirical research has been done to establish best practices, or what works best to promote reintegration.

* The most promising legislative development recognizes the key role occupational licensing plays in the process of reintegration, and it was this area that showed the greatest uniformity of approach.  Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted a similar comprehensive framework to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable.

* The most consequential single new law was a Florida ballot initiative to restore the franchise to 1.5 million people with a felony conviction, which captured headlines across the country when it passed with nearly 65% of voters in favor.  Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York.

* The largest number of new laws — 27 statutes in 19 states — expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures.  A significant number of states addressed record clearing for non-conviction records (including diversions), for marijuana or other decriminalized offenses, for juveniles, and for human trafficking victims.

* For the first time, the disadvantages of a separate petition-based relief system were incorporated into legislative discussions.  Four states established automated or systemic record-sealing mechanisms aimed at eliminating a “second chance gap” which occurs when a separate civil action must be filed.  Pennsylvania’s “clean slate” law is the most ambitious experiment in automation to date.  Other states sought to incorporate relief directly into the criminal case, avoiding the Pennsylvania law’s technological challenges.

* Three additional states acted to prohibit public employers from inquiring about criminal history during the initial stages of the hiring process, Washington by statute, and Michigan and Kansas by executive order.  Washington extended the prohibition to private employers as well.  A total of 33 states and the District of Columbia now have so-called “ban-the-box” laws, and 11 states extend the ban to private employers.

* Four states expanded eligibility for judicial certificates of relief. Colorado’s “order of collateral relief” is now the most extensive certificate law in the nation, available for almost all crimes as early as sentencing, and effective to bar consideration of conviction in public employment and licensing. Arizona, California, and North Carolina made more modest changes to facilitate access to this judicial “forgiving” relief.

* The District of Columbia established a clemency board to recommend to the President applications for pardon and commutation by D.C. Code offenders. Governors in California and New York used their pardon power to spare dozens of non-citizens from deportation, and California also streamlined its pardon process and made it more transparent.  Moving in the other direction, Nebraska authorized sealing of pardoned convictions, and Maine made both pardon applications and pardon grants confidential.

* The legal landscape at the end of 2018 suggests that states are experimenting with a more nuanced blending of philosophical approaches to dealing with the collateral consequences of arrest and conviction.  These approaches include forgiving people’s past crimes (through pardon or judicial dispensation), forgetting them (through record-sealing or expungement), or forgoing creating a record in the first place (through diversionary dispositions).  While sealing and expungement remain the most popular forms of remedy, there seems to be both popular and institutional resistance to limiting what the public may see respecting the record of serious offenses, and a growing preference for more transparent restoration mechanisms that limit what the public may do with such a record, along with standards to guide administrative decision-making.

January 10, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Attorney General Nominee Bill Barr reportedly to support FIRST STEP Act at coming hearing (and should be pressed on particulars)

This effective new Reuters article, headlined "Tough-on-crime record trails U.S. attorney general nominee into Senate hearings," reports on how the new AG-nominee's record on criminal justice issues and recent developments could intersect at next week's confirmation hearings. Here are the details:

President Donald Trump’s nominee for U.S. attorney general is expected to tell a Senate panel next week that he supports a new law easing prison sentences for some criminals, even though he advocated for decades for just the opposite.

William Barr for much of his career championed a get-tough approach to crime that has recently lost favor, culminating last month in Trump signing into law the biggest overhaul of the criminal justice system in a generation.

The First Step Act, enacted with strong bipartisan support in Congress, reduces mandatory minimum sentences for some nonviolent, low-level offenders and makes it easier for prisoners to qualify for early release to halfway houses or home confinement. Trump signed it into law just weeks after he nominated Barr, who issued a report during an earlier stint as attorney general in the 1990s called “The Case for More Incarceration.”

Barr is expected to say that he will support the new law when he appears before the Senate Judiciary Committee for confirmation hearings next week, according to two sources familiar with his preparations. “We believe that Barr’s position will be somewhat moderated when he testifies if for no other reason than that his boss (Trump) fully subscribes to the First Step approach,” said Fraternal Order of Police executive director Jim Pasco, who said he had been in touch with people helping Barr prepare for the Senate hearings.

The Senate, controlled by Trump’s fellow Republicans, is expected to confirm Barr’s nomination to again head the Justice Department.

Concerns about Barr’s record on criminal justice have so far taken a back seat to questions about how he would handle Special Counsel Robert Mueller’s investigation into possible collusion between Russia and the Trump campaign in the 2016 election. Trump has denied any collusion with Moscow and Russia has said it did not meddle in the election.

Republican Senator Lindsey Graham, the incoming chairman of the Judiciary Committee, said he did not discuss the First Step Act when Barr visited him at his office on Wednesday. “That would have been a good question to ask him,” Graham said after the meeting.

But criminal justice advocates said they were working with lawmakers on the committee to make sure Barr will be questioned in detail about specific elements of the new law to ensure that he will support it. “It certainly appears he holds an old-school view of our criminal justice system, but there is an overwhelming majority of members of the House and Senate on both sides of the aisle who do not feel that way,” said Holly Harris, executive director of Justice Action Network, a coalition of criminal-justice groups across the political spectrum....

Democratic Senator Cory Booker, a member of the Judiciary Committee, is among those concerned by Barr’s record. “Barr took an extremely troubling approach to mass incarceration in the nineties at the DOJ and it doesn’t look like his views have changed much,” said a Booker aide, speaking on condition of anonymity.

As attorney general, Barr would be in a position to influence how prisoners would be released into halfway houses or home confinement. “It’s frustrating to think we might have found one of the few people who are still stuck in the 1980s and 1990s on these issues,” said Kevin Ring, head of Families Against Mandatory Minimums, which has worked to reduce minimum prison terms.

Barr was attorney general in 1991-1993, a time when U.S. crime rates reached an all-time high of 758 incidents per 100,00 people. They have since fallen by nearly half, to a rate of 394 incidents per 100,000 people in 2017, according to the FBI. At that time, Barr advocated long prison sentences to keep violent criminals off the streets. “First, prisons work. Second, we need more of them,” Barr’s Justice Department wrote in a 1992 report.

Barr maintained his get-tough stance after leaving office. Along with other former law enforcement officials, he lobbied against earlier versions of the First Step Act in 2014 and 2015. When Trump fired Attorney General Jeff Sessions in November, Barr and two other former attorneys general penned a Washington Post opinion piece that praised Sessions for directing prosecutors to pursue the severest penalties possible.

Barr’s advocacy came as others were concluding that mandatory minimum sentences and other tough policies had taken too harsh a toll, especially on African-Americans and Latinos, and were costing taxpayers too much money.

I am not at all optimistic that an Attorney General Barr will be much better (or at all better) than former Attorney General Sessions was on these important issues.  But I am hopeful that, with effective questioning by folks on both sides of the aisle during his confirmation hearings, nominee Barr might be inclined to make statements supportive of various key provisions of the FIRST STEP Act that will make it harder for him to undermine these provisions once in office.  I sincerely hope that strong advocates of the FIRST STEP Act and criminal justice reform will be sure to ask a lot of strategic questions of Barr in this arena rather than just give him a chance to repeat whatever Mueller investigation talking points that he is developing.

Prior related posts:

January 10, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, January 9, 2019

"The Accuracy, Equity, and Jurisprudence of Criminal Risk Assessment"

The title of this post is the title of this notable and timely new paper on SSRN authored by Sharad Goel, Ravi Shroff, Jennifer Skeem and Christopher Slobogin.  Here is its abstract:

Jurisdictions across the country, including the federal government through its recently enacted First Step Act, have begun using statistical algorithms (also called “instruments”) to help determine an arrestee’s or an offender’s risk of reoffending.  These risk assessment instruments (RAIs) might be used at a number of points in the criminal process, including at the front-end by judges to impose a sentence after conviction, at the back-end by parole boards to make decisions about prison release, or in between these two points by correctional authorities determining the optimal security and service arrangements for an offender.  At the pretrial stage, RAIs might come into play at the time of the bail or pretrial detention determination by a judge, which usually takes place shortly after arrest.  The increased use of RAIs in the criminal justice system has given rise to several criticisms.  RAIs are said to be no more accurate than clinical assessments, racially biased, lacking in transparency and, because of their quantitative nature, dehumanizing.  This chapter critically examines a number of these concerns. It also highlights how the law has, and should, respond to these issues.

January 9, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Spotlighting problems with immediate application of expanded good time credit in the FIRST STEP Act

This new Reuters article, headlined "Error in U.S. prisons law means well-behaved inmates wait longer for release," reports on what appears to be a significant drafting hiccup in the expansion of good time credits through the FIRST STEP Act. Here are the details:

U.S. prisoners who were expecting earlier release for good behavior, thanks to a new criminal justice law enacted last month, must keep waiting due to an error in the bill, said activists working with the White House to fix the mistake.

Potentially thousands of inmates could be affected by the error in the First Step Act, signed into law on Dec. 21 by Republican President Donald Trump in a rare example of bipartisanship in Washington, with both Democrats and Republicans backing it.

The law required the Justice Department’s Bureau of Prisons (BOP), among other measures, to retroactively recalculate good behavior credits, a step that had been expected to reduce some inmates’ sentences by as many as 54 days per year. Previously, inmates could only earn up to 47 days per year toward early release for good behavior.

Advocates of the law expected the bill’s enactment into law meant that several thousand inmates would get their freedom right away, in time for the 2018 holiday season. But a drafting error in the language of the law has prevented the Justice Department from immediately applying the new method of calculating good-behavior credits, they said.

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM). “It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet. “The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says....

Activists said the law, as drafted, confused good-behavior credits, which reduce a sentence, with earned-time credits, which do not. Earned-time credits allow certain inmates to qualify for early transfer to halfway houses. The law also mistakenly said that new rules on good-behavior credits could not kick in until BOP finishes a risk-assessment process for deciding which inmates can get earned-time credits.

Whether the error can be promptly fixed was unclear. A federal judge in Chicago on Jan. 3 denied a prisoner’s request to be released earlier for good behavior, citing the letter of the law. “This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Several activists for prisoners told Reuters their groups are working with the White House on whether the Justice Department can find a work-around or if a legislative fix needs to be tucked into a broader spending bill for action by Congress. Ring said his group is also in talks with lawmakers.

The error comes at a difficult time, with the federal government in a partial shutdown. The Justice Department is one of several agencies partially closed because its funding ran out on Dec. 22 and has not been renewed by Congress.

As I understand this problem, it flows from the fact that the enacted version of the FIRST STEP Act has the expanded good time credits provision tucked within sections of the Act which is said to be effective only when the Attorney General has created "a risk and needs assessment system" that the AG has 210 days to develop.  This placement leads to the view that the expanded good time credits cannot be applied until the risk and needs assessment system gets developed later in 2019.  I am not sure that is the only plausible reading of these provisions of the FIRST STEP Act, but it sounds as though this is the reading now being adopted by the Bureau of Prisons (and maybe some courts).  Such a reading would seem to mean prisoners will not get the benefit of expanded good time credits until at least July 2019.

The expanded good time credits provided by the FIRST STEP Act only amount to an additional week off a sentence for every year served.  So even for those prisoners clearly impacted by this problem, this temporary snafu may only mean a few more week or months in custody before release.  But for prisoners and their families hoping to see freedom a few weeks or months earlier in 2019, this really stinks.

January 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Fourth Circuit affirms officer Michael Slager "conviction" (by a judge at sentencing) of murdering Walter Scott

I noted in posts here and here back in December 2017 that, after the high-profile shooting and then state and federal prosecutions of former South Carolina police officer Michael Slager for killing Walter Scott, the real action in his case became a federal sentencing "trial" after Slager pleaded guilty to a federal civil rights offense.  This "trial" was really a judicial inquisition in which a federal sentencing judge took testimony at a sentencing hearing in order to decide whether Slager's crime was "really" second-degree murder or voluntary manslaughter for purposes of calculating the appropriate guideline range.  

Notably, the presentence report in Slager's case suggested a prison term of between 10 and 13 years based on the conclusion that his crime should be viewed as voluntary manslaughter (and his defense attorneys requested an even lower sentence).  But federal prosecutors successfully argued that the district court should, after applying the guidelines for second-degree murder and obstruction of justice, impose a prison sentence for Slager within an enhanced guideline range of roughly 17 to 22 years of imprisonment.  The judge, after a multi-day hearing, "convicted" Slager of second-degree murder and ultimately imposed a 20-year prison term.  Yesterday the Fourth Circuit affirmed the sentence in US v. Slager, No. 18-4036 (4th Cir. Jan 8, 2019) (available here). Here is how that opinion gets started and a passage from the heart of the opinion:

Defendant Michael Slager (“Defendant”), a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott (“Scott”), when Scott was unarmed and fleeing arrest.  Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.”  Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law.  The district court sentenced Defendant to a 240-month term of imprisonment.  Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.  Finding no reversible error, we affirm Defendant’s sentence....

“When sentencing courts engage in fact finding, preponderance of the evidence is the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir. 2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of fact simply because we would have decided the case differently.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).  Instead, clear error exists only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley, 532 U.S. at 242)....

Because Santana’s video does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: Defendant and Santana.  Examining at length each of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL 445497, at *4–6.  The record amply supports that credibility determination....

In conclusion, the district court did not reversibly err by inferring Defendant’s malice from the facts it found credible. Moreover, the court did not reversibly err by determining that Defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

I take no issue with the substantive conclusions of the courts here, but I still always find it jarring when district judges at sentencing are resolving factual disputes and reaching judgments about criminal behavior that have long traditionally been classic jury issues. But, thanks to the remedial opinion in Booker, these matters can still be resolved by judges at sentencing because their findings result in only advisory recommendations rather than sentencing mandates.

Prior related posts:

January 9, 2019 in Advisory Sentencing Guidelines, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Deputy Attorney General Rod Rosenstein reportedly to leave Justice Department after new AG is confirmed

As reported here via Reuters, "Deputy U.S. Attorney General Rod Rosenstein, who has overseen the Russian election meddling probe, is preparing to leave the U.S. Department of Justice in coming weeks as President Donald Trump’s nominee to lead the department is set to take over, a department official said on Wednesday." Here is more:

William Barr, Trump’s pick to replace Sessions who was fired soon after the November midterm congressional elections, is set to appear for a confirmation hearing next week before the Senate Judiciary Committee, which must weigh his nomination before the full Senate considers his approval.

The official, who asked not to be named since no announcement has been made, said there is no specific plan for Rosenstein’s departure and that he plans to leave sometime after Barr’s confirmation.

If confirmed, Barr, who was U.S. Attorney General under the late President George H.W. Bush from 1991 to 1993, would oversee the investigation led by U.S. Special Counsel Robert Mueller, a fellow Republican chosen by Rosenstein. Barr’s nomination is likely to meet heavy scrutiny regarding the ongoing investigation, particularly from Democrats, following reports he had written a memo in June questioning the probe. Rosenstein has said the memo had no impact on the department’s work.

Rosenstein will stay on to ensure smooth transition with Barr, the official said, adding that he has seen his job as deputy as a two-year stint and is not being forced out.

Asked about Rosenstein’s departure, first reported by ABC News, White House spokeswoman Sarah Sanders said she had not spoken to Rosenstein and would leave any announced departures to him or the president. “Certainly, I don’t think there’s any willingness by the president or the White House to push him out,” Sanders told Fox News in an interview.

Rosenstein has stayed on under Acting Attorney General Matt Whitaker, whose controversial appointment has sparked numerous legal challenges and raised questions about what role he would play regarding the investigation.

Rosenstein has been frequently criticized by Trump, who calls the Russia investigation a “witch hunt” and denies any collusion with Moscow. Russia has also denied any election interference.

As this reporting highlights, most media and pundits are likely to discuss the Russia investigation as they assess DAG Rosenstein's coming departure and the likely confirmation of AG-nominee Barr.  But serious criminal justice fans know that a new Attorney General and now a new Deputy Attorney General are critically important players in shaping the Justice Department's work on dynamic federal criminal justice issues ranging from marijuana reform to implementation of the FIRST STEP Act to future work by the US Sentencing Commission and so much more.

January 9, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Tuesday, January 8, 2019

Florida Supreme Court confirms Sixth Amendment rights still of sentencing consequence

Though decided a few weeks ago, I just recently saw the notable Florida Supreme Court ruling in Brown v. Florida, No. SC18-323 (Fla. Dec. 20, 2018) (available here). Here is how it begins:

We review the Fifth District Court of Appeal’s decision in Brown v. State, 233 So. 3d 1262 (Fla. 5th DCA 2017). In Brown, the Fifth District expressly declared valid section 775.082(10), Florida Statutes (2015), which requires that a qualifying offender whose sentencing scoresheet totals 22 points or fewer be sentenced to a nonstate prison sanction unless the trial court makes written findings that a nonstate prison sanction could present a danger to the public. We have jurisdiction.  See art. V, § 3(b)(3), Fla. Const. As explained below, because subsection (10) requires the court, not the jury, to find the fact of dangerousness to the public that is necessary to increase the statutory maximum nonstate prison sanction, we hold that subsection (10) violates the Sixth Amendment to the United States Constitution and quash the Fifth District’s decision.

And here is a key part of the court's analysis:

We agree with Brown that subsection (10) unambiguously sets the statutory maximum penalty, for Apprendi purposes as defined by Blakely, as “a nonstate prison sanction,” § 775.082(10), Fla. Stat., for her and similarly situated offenders. This is because, absent a factual finding of “dangerousness to the public” — a finding not reflected in the jury’s verdict on the theft charge — the statute plainly states that “the court must sentence the offender to a nonstate prison sanction,” id. (emphasis added), given the crime charged and Brown’s criminal history as reflected on her criminal punishment code scoresheet.  Although it would have been possible for the Legislature to have written this statute as a “mitigation statute,” giving the court discretion to impose up to five years unless the defendant proved non-dangerousness, the Legislature did not do so. We read statutes as they are written.

Accordingly, we hold that subsection (10) violates the Sixth Amendment in light of Apprendi and Blakely based on its plain language requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction.

January 8, 2019 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Spotlighting criminal-justice debt and its profound impact on the poorest Americans

The New York Times magazine has this lengthy new article about criminal justice debt under this full headline: "How Cities Make Money by Fining the Poor: In many parts of America, like Corinth, Miss., judges are locking up defendants who can’t pay — sometimes for months at a time." I recommend the piece in full, and here is a snippet:

No government agency comprehensively tracks the extent of criminal-justice debt owed by poor defendants, but experts estimate that those fines and fees total tens of billions of dollars.  That number is likely to grow in coming years, and significantly: National Public Radio, in a survey conducted with the Brennan Center for Justice and the National Center for State Courts, found that 48 states increased their civil and criminal court fees from 2010 to 2014.  And because wealthy and middle-class Americans can typically afford either the initial fee or the services of an attorney, it will be the poor who shoulder the bulk of the burden....

In areas hit by recession or falling tax revenue, fines and fees help pay the bills.  (The costs of housing and feeding inmates can be subsidized by the state.)  As the Fines and Fees Justice Center, an advocacy organization based in New York, has documented, financial penalties on the poor are now a leading source of revenue for municipalities around the country.  In Alabama, for example, the Southern Poverty Law Center took up the case of a woman who was jailed for missing a court date related to an unpaid utility bill.  In Oregon, courts have issued hefty fines to the parents of truant schoolchildren. Many counties around the country engage in civil forfeiture, the seizure of vehicles and cash from people suspected (but not necessarily proven in court) of having broken the law.  In Louisiana, pretrial diversion laws empower the police to offer traffic offenders a choice: Pay up quickly, and the ticket won’t go on your record; fight the ticket in court, and you’ll face additional fees.

“What we’ve seen in our research is that the mechanisms vary, depending on the region,” says Joanna Weiss, co-director of the Fines and Fees Justice Center.  “But they have one thing in common: They use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least.”  Aside from taxes, she says, “criminal-justice debt is now a de facto way of funding a lot of American cities.”

The jailing of poor defendants who cannot pay fines — a particularly insidious version of this revenue machine — has been ruled unconstitutional since a trio of Supreme Court cases spanning the 1970s and early 1980s....  Still, decades after those cases were decided, the practice of jailing people who cannot pay persists, not least because Supreme Court decisions do not always make their way to local courts.  “Precedent is one thing,” says Alec Karakatsanis, executive director of Civil Rights Corps, a Washington-based nonprofit.  “The way a law is written is one thing. The way a law is actually experienced by poor people and people of color is another.”...

In 2010, the American Civil Liberties Union detailed evidence of what it calls “modern-day ‘debtors’ prisons’ ” — essentially, courts operating in the same way as Judge Ross’s in Corinth — in Georgia, Michigan, Louisiana, Ohio and Washington State.  “If you spent a few weeks driving from coast to coast, you might not find similar policies in place in every single county,” Sam Brooke, the deputy legal director of the Southern Poverty Law Center’s economic-justice program, told me.  “But every other county? Probably.  This is a massive problem, and it’s not confined to the South.  It’s national.”...

In recent years, the Southern Poverty Law Center and other organizations, including the A.C.L.U. and Karakatsanis’s Civil Rights Corps, have been filing class-action lawsuits against dozens of courts across the South and Midwest and West, arguing that local courts, in jailing indigent defendants, are violating the Supreme Court rulings laid down in Williams, Tate and Bearden.  The lawsuits work: As a settlement is negotiated, a judge typically agrees to stop jailing new inmates for unpaid fines or fees.  “No one wants to admit they’ve knowingly acted in this manner,” says Brooke, who partnered with Karakatsanis on lawsuits in Alabama and filed several elsewhere in the South. “So they tend to settle quickly.” The trouble is locating the offending courts.

January 8, 2019 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Intra-City Differences in Federal Sentencing Practices"

Cover_intra-city-differencesThe US Sentencing Commission has just released its second big research report of the new year with this 138-page report titled "Intra-City Differences in Federal Sentencing Practices." (The main text of the report is less than 30 pages, with the other 100+ full of detailed appendices.)  This USSC webpage provides links, an overview and conclusions from the report:

Overview

This report examines variations in sentencing practices — and corresponding variations in sentencing outcomes — in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker.  The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average.

This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Conclusions

Although the trend of increasing differences among judges slowed after 2011, the increasing differences in sentencing practices first reported at the district level in the Commission’s 2012 Booker Report generally persist to this day, even within the same courthouse. In particular, the Commission finds that:

  • From the Booker to Gall Periods, 23 of the 30 cities had increases in their total spreads, and 22 of 27 cities (those with at least five judges in all three periods) had increases in their standard deviations.  From the Gall to the Post-Report Periods, 20 of the 30 cities had increases in their total spreads, and 16 of the 27 cities (those with at least five judges in all periods) had increases in their standard deviations, although the magnitude of the increases was less than the magnitude of the increases from the Booker Period to the Gall Period.

  • In terms of the overall changes during the 13 years, from the Booker Period to the Post-Report Period, 25 of the 30 cities saw a net increase in their total spreads and 23 cities of the 27 with reported standard deviations saw a net increase in their standard deviations.

  • Considering all 30 cities together as a representative sample of the country as a whole, the average total spreads for all 30 cities in the three periods increased from 18.2 in the Booker Period to 23.7 in the Gall Period to 27.6 in the Post-Report Period.  The average standard deviations for the 27 cities (those with at least five judges) grew from 5.8 to 7.7 to 8.3 during the same three periods.

  • In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.

Once I have a chance to review this data a bit more, I may have more to say about its findings and other takeaways.  But it seems already worth noting that any justified concerns about data showing that "the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case" are at least a bit mitigated by the passage of the FIRST STEP Act.  Those defendants unfairly receiving longer sentences because their cases were assigned to distinctly harsh sentencing judges are now generally going to be able to earn a greater portion of time off their long sentences (and have more opportunities to seek earlier release through other means) thanks to various new provisions of the the FIRST STEP Act.

January 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Monday, January 7, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments

I noted in this post the array of per curiam rulings and statements that the Supreme Court released today to get 2019 off to an interesting criminal justice start.  Regular readers will not be surprised to learn that one particular decision, namely the decision to deny certiorari in Hester v. US, has me revved up.  Hester involves a claim that the Sixth Amendment jury trial right recognized in Apprendi, Blakely, Booker and Southern Union is applicable to cases in which findings are essential for the imposition of criminal restitution.  Dissenting from the denial of cert in a this lovely little opinion, Justice Gorsuch explains why this is only logical and is consistent with an originalist approach to the Constitution:

[T]he government argues that the Sixth Amendment doesn’t apply to restitution orders because the amount of restitution is dictated only by the extent of the victim’s loss and thus has no “statutory maximum.”  But the government’s argument misunderstands the teaching of our cases.  We’ve used the term “statutory maximum” to refer to the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted.  Blakely v. Washington, 542 U.S. 296, 303 (2004).  In that sense, the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss.  And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.

The government is not without a backup argument, but it appears to bear problems of its own.  The government suggests that the Sixth Amendment doesn’t apply to restitution orders because restitution isn’t a criminal penalty, only a civil remedy that “compensates victims for [their] economic losses.”  Brief in Opposition 8 (internal quotation marks omitted).  But the Sixth Amendment’s jury trial right expressly applies “[i]n all criminal prosecutions,” and the government concedes that “restitution is imposed as part of a defendant’s criminal conviction.”  Ibid.  Federal statutes, too, describe restitution as a “penalty” imposed on the defendant as part of his criminal sentence, as do our cases.  18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(1), 3572(d)(1); see Paroline v. United States, 572 U.S. 434, 456 (2014); Pasquantino v. United States, 544 U.S. 349, 365 (2005).  Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.

If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning.  The Sixth Amendment was understood as preserving the “‘historical role of the jury at common law.’” Southern Union, 567 U. S., at 353.  And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury.  1 J. Chitty, Criminal Law 817–820 (2d ed. 1816); 1 M. Hale, Pleas of the Crown 545 (1736).  In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered.  See, e.g., Schoonover v. State, 17 Ohio St. 294 (1867); Jones v. State, 13 Ala. 153 (1848); State v. Somerville, 21 Me. 20 (1842); Commonwealth v. Smith, 1 Mass. 245 (1804).  See also Barta, Guarding the Rights of the Accused and Accuser: The Jury’s Role in Awarding Criminal Restitution Under the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476 (2014).  And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.

Students of the Apprendi-Blakely line of cases have long known that there were not very good arguments to preclude the application of jury trial rights to criminal restitution awards, and those arguments got even weaker when the Supreme Court ruled in Southern Union that the jury trial right also applied to findings needed to impose criminal fines.  And notably, Southern Union was a 6-3 ruling with only the traditional Apprendi haters, Justices Alito, Breyer and Kennedy, in dissent.

So why does the jury trial still mean less to the people today facing restitution punishments than it did to those at the time of the Sixth and Seventh Amendments’ adoption?  The only answer I can provide is hinted in the title of post.  Supposed SCOTUS originalists like Chief Justice Roberts and Justices Thomas and Kavanaugh apparently do not want to here follow originalist principles to what would appear to be their logical conclusion.  Supposed SCOTUS liberals like Justices Ginsburg and Kagan do not want to here protect a certain type of right of a certain type of criminal defendant. (Justice Sotomayor, who never shrinks from following constitutional rights wherever she thinks they must extend, joined Justice Gorsuch's dissent here). 

When push comes to shove — or rather, when criminal defendants make a serious claim that a serious constitutional right should be given serious meaning — still too many justices seem to become faint-hearted in the application of their purported principles and commitments.  Drat. 

January 7, 2019 in Blakely in the Supreme Court, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Supreme Court order list full of (state-friendly) criminal justice per curiams and notable cert denial with statements

The Supreme Court is full back in action for the New Year, beginning with this new long order list with the always-expected long list of denials of certiorari and denials of rehearing. But the list also includes these two notable per curiam rulings:

City of Escondido v. Emmons, No. 17-1660, which summarily reverses/vacates a Ninth Circuit ruling that two officers were not entitled to qualified immunity in a excessive force case.

Shoop v. Hill, No. 18-56, which summarily vacates a Sixth Circuit ruling that an Ohio capital defendant was entitled to habeas relief because the state courts misapplied precedents concerning an Eighth Amendment intellectual disability claim.

In addition, the SCOTUS order list includes these two cert denials that prompted notable statements from the Justices:

Hester v. US, No. 17-9082, concerned whether the Sixth Amendment requires jury findings in support of restitution orders and Justice Alito issued a concurrence in the cert denial, largely in response to Justice Gorsuch's extended dissent which was joined by Justice Sotomayor.

Lance v. Sellers, No. 17-1382, concerned a Georgia capital defendant's claim that his lawyer was constitutionally ineffective and Justice Sotomayor issued a lengthy dissent from the cert denial which was joined by Justices Ginsburg and Kagan.

In a separate post, I may have more to say about some of these rulings, particularly Justice Gorsuch's dissenting opinion in Hester.

UPDATE:  I now do have a new post on the Hester case here under the title "Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments."  And Amy Howe here at SCOTUSblog has a review of all the action today in the first big SCOTUS order list for 2019.

January 7, 2019 in Death Penalty Reforms, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, January 6, 2019

Two helpful reviews of the FIRST STEP Act and what it does (and does not do)

I have seen two recent reviews of the politics, policy, practicalities and potential of the FIRST STEP Act.  Here are links to the two helpful pieces, with a small excerpt from each:

From the Brennan Center, "How the FIRST STEP Act Became Law — and What Happens Next"

The FIRST STEP Act changes the conversation on mass incarceration

The FIRST STEP Act is a critical win in the fight to reduce mass incarceration. While the bill is hardly a panacea, it’s the largest step the federal government has taken to reduce the number of people in federal custody. (The federal government remains the nation’s leading incarcerator, and more people are under the custody of the federal Bureau of Prisons than any single state system.)

The FIRST STEP Act’s overwhelming passage demonstrates that the bipartisan movement to reduce mass incarceration remains strong. And the bill, which retains major parts of SRCA’s sentencing reform provisions, is now known as “Trump’s criminal justice bill.” This means that conservatives seeking to curry favor with the president can openly follow his example or push for even bolder reforms. Finally, this dynamic creates a unique opening for Democrats vying for the White House in 2020 to offer even better solutions to end mass incarceration.

From FAMM, "Frequently Asked Questions on the First Step Act, S. 756"

Q20: What does the First Step Act do to improve compassionate release?

A: The First Step Act makes a number of important reforms to how the BOP handles compassionate release requests.  The Act requires increased notification to prisoners on the availability of compassionate release and their eligibility for it.  It will also require the BOP to expedite the application review process for terminally ill prisoners and make sure that families are notified of a person’s terminal illness and given a chance to visit that person quickly.

Most significantly, the First Step Act gives federal prisoners the ability to petition directly to the sentencing court for compassionate release in the event that the BOP has waited more than 30 days to respond to a petition or the federal prisoner has been denied compassionate release after exhausting all administrative remedies at the BOP.

January 6, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Some New Year highlights from Marijuana Law, Policy & Reform

It has only been a few weeks since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, but a recent post round-up is timely given the interesting discussions that the end if 2018 and start of 2019 have engendered. So:

January 6, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Saturday, January 5, 2019

"Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment"

The title of this post is the title of this paper recently posted to SSRN authored by Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt. Here is its abstract:

This paper presents the first controlled economic experiment to study celerity, i.e. the effectiveness of swiftness of punishment in reducing illicit behavior.  We consider two dimensions: timing of punishment and timing of the resolution of uncertainty regarding the punishment.  We find a surprising u-shaped relation between deterrence and the delays of punishment and uncertainty resolution.  Institutions that either reveal detection and impose punishment immediately or maintain uncertainty about the state of detection and impose punishment sufficiently late are equally effective at deterring illicit behavior.  Our results yield strong implications for the design of institutional policies to mitigate misconduct and reduce recidivism.

January 5, 2019 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, January 4, 2019

"Why Aren’t Democratic Governors Pardoning More Prisoners?"

The question in the title of this post is the headline of this notable new piece in The Atlantic by Matt Ford. The subtitle adds "It's one of the most effective tools for reducing mass incarceration, but few are taking advantage of it."  Here are excerpts:

Governors in most states have the power to pardon or commute sentences, either at their sole discretion or with some level of input from a commission. Since most convictions occur at the state level, some governors can wield even greater influence on criminal justice than the president can.  But most governors rarely use this power, and few have made it a mainstay of their tenure in office — a major missed opportunity for justice and the public good.

Some outgoing governors were particularly resistant. New Mexico Governor Susana Martinez, a former prosecutor, issued only three pardons during her two terms in office and added new restrictions to deter applicants.  Florida Governor Rick Scott turned the state’s clemency system into a hopeless slog.  Wisconsin Governor Scott Walker issued no pardons during his eight years in power, and in one of his final official acts, he signed a bill requiring state officials to keep a list of pardoned people who commit subsequent crimes and the governor who pardoned them.

All three of those governors hail from the Republican Party, which traditionally favored tough-on-crime policies. But even Democratic governors can be stingy.  New York Governor Andrew Cuomo made headlines last month when he pardoned 22 immigrants who faced deportation or couldn’t apply for citizenship because of previous state convictions.  The pardons gave Cuomo a chance to cast himself as a leading figure in the Democratic resistance to President Trump.  But with almost 200,000 New Yorkers in prison, probation, or parole, issuing fewer than two dozen pardons is hardly a courageous act....

What would it look like if governors pursued a more aggressive approach to their clemency powers?  Jerry Brown, California’s outgoing governor, carved out a model of sorts.  The state’s longtime leader spent his fourth and final term in office setting a national benchmark for clemency: The Times of San Diego reported that Brown has pardoned at least 1,332 inmates since 2011, quadrupling the number issued by the preceding four governors combined.  The burst of activity is particularly stark compared to his two immediate predecessors, Arnold Schwarzenegger and Gray Davis, who respectively issued fifteen and zero pardons....

So where could a more apprehensive governor begin? Perhaps the most prudent place would be the swelling numbers of elderly prisoners who were condemned to spend their dying years behind bars.  In a December 2017 report, the Vera Institute for Justice found that roughly 10 percent of prisoners in state custody in 2013 — roughly 131,000 people — were more than 55 years old. Demographic trends are expected to raise that figure to 30 percent by 2030.  Multiple states already have compassionate-release programs for elderly or dying prisoners; governors could fast-track pardon and commutations to accelerate the process.

January 4, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Supreme Court grants cert on vagueness challenges to 924(c) provision in wake of Johnson and Dimaya

As detailed in this new order list, the US Supreme Court today granted certiorari in a number of new cases.  The cases involving Maryland and North Carolina partisan-gerrymandering are sure to get the most attention, but criminal law fans should be excited about the grant in US v. Davis, No. 18-431, in which the feds petitioned for review of this question:

Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague

This paragraph from the government's petition for cert explains why and how federal prosecutors are eager to distinguish the statutory provision at issue in this case from those struck down in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015):

Although the government has previously advocated an ordinary-case categorical approach to the determination whether an offense constitutes a “crime of violence” under Section 924(c)(3)(B), nothing in the statute or the decisions of this Court requires such an approach.  Section 924(c)(3)(B)’s subsection-specific “crime of violence” definition is applicable only to the conduct for which the defendant is currently being prosecuted, not to any conduct for which the defendant may have been convicted in the past.  It can naturally be read as inviting a case-specific determination as to whether that currently at issue conduct — not the hypothetical conduct of an “ordinary case” — satisfies the substantial-risk test in 18 U.S.C. 924(c)(3)(B).  And, so construed, Section 924(c)(3)(B) does not implicate the constitutional infirmity with the ordinary-case approach that was identified in Dimaya and Johnson v. United States, 135 S. Ct. 2551, 2561 (2015).  Indeed, the Court in those cases “d[id] not doubt” that such a case-specific approach, involving a jury finding beyond a reasonable doubt about the “real-world conduct” proved in the case, would be fully constitutional.  Dimaya, 138 S. Ct. at 1215 (quoting Johnson, 135 S. Ct. at 2561).

Got that? Simple stuff here, and simply fascinating to think about whether the Dimaya five (perhaps joined by the new guy) could be prepared to continue its vagueness movement through the bowels of federal law.

January 4, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

"Career Motivations of State Prosecutors"

The title of this post is the title of this interesting new article authored by Ronald Wright and Kay Levine.  Here is its abstract:

Because state prosecutors in the United States typically work in local offices, reformers often surmise that greater coordination within and among those offices will promote sound prosecution practices across the board.  Real transformation, however, requires commitment not only from elected chief prosecutors but also from line prosecutors—the attorneys who handle the daily caseloads of the office.  When these individuals’ amenability to reform goals and sense of professional identity is at odds with the leadership, the success and sustainability of reforms may be at risk.

To better understand this group of criminal justice professionals and their power to influence system reforms, we set out to learn what motivates state prosecutors to do their work.  Using original interview data from more than 260 prosecutors in nine different offices, we identify four principal career motivations for working state prosecutors: (1) reinforcing one’s core absolutist identity, (2) gaining trial skills, (3) performing a valuable public service, and (4) sustaining a work-life balance.  However, only two of these motivations — fulfilling one’s core identity and serving the public — are acceptable for applicants to voice in the hiring context, even in offices that employ a significant number of former defense attorneys.  From this finding we offer a cautionary tale to job applicants as well as to office leaders, particularly chief prosecutors who want to reform office practices and to make those changes stick.

January 4, 2019 in Who Sentences | Permalink | Comments (2)

FIRST STEP Act leads to release of Matthew Charles from federal prison after remarkable re-incarceration

I discussed in this post from last May the remarkable case of Matthew Charles, who a few years ago had his 35-year sentence reduced thanks to lower crack sentencing guidelines, but thereafter was reincarcerated when the Sixth Circuit concluded he was not eligible to benefit from guideline changes.  Now, as this local article details, Charles today has been freed thanks to the FIRST STEP Act:

Matthew Charles, a man who was forced to return to prison after a court reversed a judge's ruling that his sentence was unfair, will be released again after the passage of a sweeping federal law that allows courts to shorten unduly harsh prison terms.

U.S. District Judge Aleta Trauger ruled on Thursday that Charles was "entitled to immediate release" under the new law, known as the First Step Act.

Charles, 52, was sentenced to 35 years in prison on charges that he trafficked crack cocaine in 1996. Advocates and experts have argued that sentence was unfair because punishments at the time were much lower for people convicted of dealing powder cocaine. Over the years, reform laws have aimed to address the disparity by shortening sentences for crack cocaine. Charles' attorneys argued the Fair Sentencing Act, passed in 2010, justified lowering his term.

In 2015, former federal judge Kevin Sharp agreed Charles deserved a shortened sentence. As a result, Charles was released in 2016. He did not re-offend.

But after an appeals court reversed Sharp's ruling, Charles was ordered to serve a full 35 years behind bars. As Charles prepared to return to prison in 2018, his case received national attention in part due to coverage from Nashville Public Radio.

But the new First Step Act, passed into law late in 2018, allowed judges to apply the drug sentencing reforms of the Fair Sentencing Act retroactively. The law cleared the way for Charles' sentence to be reconsidered again.

Federal public defenders representing Charles asked for his sentence to be lowered on Dec. 27, days after the First Step Act was signed by President Donald Trump. Prosecutors responded Wednesday, saying they did not oppose his release because it was allowed under the new law. "Because Congress has now enacted a new law that does appear to make Charles legally eligible for a reduced sentence, the government does not object to the court exercising its discretion to reduce Charles’s sentence," the federal prosecutors wrote....

"Justice prevailed here," Sharp, the former federal judge, said in an interview. "It gives you hope that it can happen again." Sharp, who has become a leading advocate for sentencing reform, said Charles was "a poster child for why this act was needed." The former judge mentioned Charles' case during a meeting with Trump to discuss inequality in the criminal justice system.

The problem, Sharp said, is that Charles' case is not unique. It is similar to many others that do not receive publicity or review. "There are thousands of them out there," Sharp said. "We can't quit."

Prior related post:

January 4, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered | Permalink | Comments (1)

Thursday, January 3, 2019

"The Metal Eye: Ethical Regulation of the State’s Use of Surveillance Technology and Artificial Intelligence to Observe Humans in Confinement"

The title of this post is the title of this new article authored by Jennifer Brobst available via SSRN.  Here is its abstract:

This article addresses the dual interests of privacy and the need for social interaction as a right of personal autonomy in choosing the balance between them.  This is a right in need of protection in the face of new technology, including artificial intelligence, which has enabled constant state surveillance of individuals.  Those most at risk of a deprivation of this right -- persons in state institutional confinement, including those in prisons, nursing homes, or involuntarily committed in mental institutions -- provide an important context for examining this potential infringement, because there is a particularly strong concurrent state interest to surveil to maintain order and security.

The historical development of common law and federal constitutional protections of the rights of persons in confinement is examined next to the emergence of state constitutional amendments guaranteeing a right of privacy.  In addition, mental health research has added to the policy development in this area, as seen in research regarding the impact of solitary confinement.

January 3, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 2, 2019

Noting the notable "new crop of reform-minded prosecutors"

Though I do not expect a new wave of progressive prosecutors to radically change American criminal justice system, I do hope they can and will be important contributor to whole new conceptions of how to approach crime and punishment in the USA.  This new AP piece talks about some of the notable new folks taking office this year, and here are excerpts:

To get elected as a district attorney, sounding tough on crime used to be the most effective campaign strategy. But in recent years, district attorneys have been winning elections by sounding big on reform.

Next month, at least eight new reform-minded prosecutors will take office in cities around the country after winning their local elections by promising to be more compassionate toward drug addicts and more evenhanded in the treatment of minorities. Some won their races against long odds and deeply entrenched tough-on-crime attitudes.

In Chesterfield County, Virginia, a Democratic defense attorney who promised to eliminate cash bonds for nonviolent offenders won a traditionally conservative district held by a Republican for 30 years.

In Massachusetts, a lawyer who pledged to stop prosecuting a list of more than a dozen nonviolent crimes became the first African-American woman to win the district attorney’s office in Suffolk County, a district that includes Boston.

And in Dallas County, Texas, former Judge John Creuzot won after promising to reduce incarceration rates by 15 percent to 20 percent and to treat drug crimes as a public health issue. “Justice is HEART work” was part of his campaign slogan.

For decades, that kind of mantra by someone running for district attorney would have been seen as soft on crime and a turnoff for many voters. But a shift began in some communities several years ago when candidates began tapping into public frustration over high incarceration rates, disparate treatment of minorities, and the decades-old war on drugs....

This new crop of prosecuting attorneys is facing resistance to proposals for sweeping reforms, mainly from police and prosecutors in their own offices who are accustomed to decades-old policies of locking up defendants as long as possible....

Rachael Rollins, who won the District Attorney’s seat in Boston, raised the ire of everyone from police to retail store owners when she promised to stop prosecuting crimes such as shoplifting, resisting arrest, larceny under $250, drug possession and trespassing. She pledged to dismiss the cases or require offenders to do community service or complete education programs. “Accountability does not necessarily have to equal incarceration,” Rollins said. “There are many different tools we can use to hold people accountable.”

Larry Krasner, a civil rights attorney and public defender in Philadelphia, won a longshot bid for the District Attorney’s office in 2017. During his first year in office, Krasner has let go about 30 assistant prosecutors — 10 percent of the 300 lawyers in his office — and made it mandatory that he personally has to approve any plea deal that calls for more than 15 to 30 years in prison.

One of the challenges he’s faced and the newly elected DAs will likely face is an institutionalized belief that prosecutors should always seek the most serious charge and longest sentence possible. “I think resistance comes in many forms,” Krasner said. “There’s definitely a resistance that comes from the court system itself.”

Many of the new prosecutors have pledged to treat drug cases less like crimes and more like a public health problem. Scott Miles, a longtime defense attorney, won the Commonwealth’s Attorney job in Chesterfield County, just south of Richmond, Virginia, after promising to reduce felony drug offenses to misdemeanors in simple possession cases. Miles promised to “replace our outdated war-on-drugs approach to addiction.”

Kevin Carroll, president of the Chesterfield Fraternal Order of Police, said he is concerned that Miles will go too easy on drug offenders who often commit other crimes to support their habit. “If you’re not going to get in trouble for it, what’s the fear?” he said. “The truth of the matter is, unfortunately, for a lot of the people who are addicted to drugs, their ability to understand the difference between right and wrong is compromised. The fact is they’ll do what they need to do to get the drugs, and if they have to steal, they’ll steal.”

Lucy Lang, executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said the new batch of reform-minded prosecutors represents a shift in the public’s attitude toward the criminal justice system. “It’s a little hard to say whether this reflects a massive sea change,” Lang said. “But I do think that this reflects an increase in awareness on the public’s part of the civil rights crisis we have found ourselves in as a result of overpolicing and mass incarceration over the past 50 years.”

January 2, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

US Sentencing Commission releases big new report on "Mandatory Minimum Penalties for Federal Sex Offenses"

The US Sentencing Commission has kicked of the new year with this 81-page report titled ""Mandatory Minimum Penalties for Federal Sex Offenses." This USSC webpage provides this summary and key findings from the report:

Summary

This publication examines the application of mandatory minimum penalties specific to federal sex offenses; it is the sixth and final release in the Commission's series of publications on mandatory minimum penalties.

Using fiscal year 2016 data, this publication includes analyses of the two types of federal sex offenses carrying mandatory minimum penalties, sexual abuse offenses and child pornography offenses, as well their impact on the Federal Bureau of Prisons population. In addition to analyzing child pornography offenses generally, this publication analyzes child pornography offenses by offense type, exploring differences in frequency, offender characteristics, and sentencing outcomes for distribution, receipt, and possession offenses. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.

Key Findings

  • Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties.
    • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016.
    • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016.
  • Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.
    • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016.
    • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016.
    • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016.
  • Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties.
    • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty.
    • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%).  In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively.
    • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%).
    • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50.
  • Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months).
    • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum penalty (55 months).
    • Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a five-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.
  • Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).
  • While still constituting a relatively small percentage of the overall prison population, the number of both sexual abuse offenders and child pornography offenders in Federal Bureau of Prisons custody has steadily increased, with both reaching population highs as of September 30, 2016.
    • Sexual abuse offenders accounted for only 3.5 percent (n=5,764) of the federal prison population as of September 30, 2016, but the number of sexual abuse offenders in a federal prison has steadily increased since fiscal year 2004, from 1,640 offenders to a high of 5,764 in fiscal year 2016. The number of offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 276 to 4,055, during the same time period.
    • Child pornography offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of child pornography offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a child pornography offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.

January 2, 2019 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4)

Monday, December 31, 2018

Federal criminal caseload highlights from Chief Justice's "2018 Year-End Report on the Federal Judiciary"

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary. The 2018 version from Chief Justice John G. Roberts is available here, and it includes an Appendix on the Workload of the Courts with some notable federal criminal justice details. Here are those details:

Criminal appeals fell one percent, appeals of administrative agency decisions decreased one percent, and bankruptcy appeals declined 10 percent.

Original proceedings in the courts of appeals, which include prisoner requests to file successive habeas corpus proceedings in the district court, dropped eight percent this year, continuing the decline from last year.  These filings had spiked in 2016 after the Supreme Court’s decision in Welch v. United States, 578 U.S. ___, No. 15-6418 (Apr. 16, 2016), which provided a new basis for certain prisoners convicted under the Armed Career Criminal Act to challenge their sentences....

Filings for criminal defendants (including those transferred from other districts) increased 13 percent to 87,149. Defendants charged with immigration offenses rose 37 percent, largely in response to a 40 percent increase in defendants charged with improper reentry by an alien.  The southwestern border districts received 78 percent of national immigration defendant filings.  Drug crime defendants, who accounted for 28 percent of total filings, grew two percent, although defendants accused of crimes associated with marijuana decreased 19 percent.  Filings for defendants prosecuted for firearms and explosives offenses rose 21 percent, the highest total since 2004.  The district courts saw increased filings involving general offenses, violent offenses, and sex offenses, and reduced filings involving justice system offenses, traffic offenses, and regulatory offenses....

A total of 129,706 persons were under post-conviction supervision on September 30, 2018, a reduction of four percent from one year earlier.  Of that number, 113,189 persons were serving terms of supervised release after leaving correctional institutions, a three percent decrease from the prior year.  Cases activated in the pretrial services system, including pretrial diversion cases, increased 13 percent to 99,931.

December 31, 2018 in Data on sentencing | Permalink | Comments (0)

NY Gov closes out 2018 with clemency grants

This New York Post piece, headlined "Cuomo grants clemency to 29 convicts, including murderers," reports on a final act of sentencing significance from the Governor of New York. Here are the basic details:

Gov. Cuomo granted clemency to 29 convicts Monday — including four serving lengthy sentences for murder.

Twenty-two of the inmates won pardons, including several immigrants convicted of drug crimes who were facing possible deportation. Nine others had their sentences commuted, four for murder and three for armed robbery.

“These actions will help keep immigrant families together and take a critical step toward a more just, more fair and more compassionate New York,” the governor said in a statement.

The convicted murderers had all served between 20 and 33 years and had committed the crimes in their teens. Alphonso Riley-James and Roy Bolus, both 49, were were part of a group involved in a drug deal in Albany that went bad and left two men dead.

But neither inmate was accused of causing the deaths, Cuomo said, and both have served 30 years of a potential life sentences. The governor said both showed remorse and had exemplary records in prison....

Two other convicted killers were also crime victims themselves, the governor said. Dennis Woodbine, 42, served almost 22 years of a 25-to-life sentence following an incident in Brooklyn in 1998, when he was 19. While chasing a group of young men who had stolen his jewelry, Woodbine fired a gun and struck and killed an innocent bystander. He has since earned a B.A. and is a mentor in the organization Rehabilitation Through the Arts and was featured in a PBS documentary.

The governor also commuted the sentence of Michael Crawford, 38, who served 20 years of a 22-to-life sentence after being convicted at age 17 of shooting an individual who stole concert tickets from him in Buffalo in 1999. The governor also commuted the sentences of three other prisoners convicted of robbery or weapons possession.

The full official statement and list of clemency grants from Gov Cuomo is available at this link.

December 31, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, December 30, 2018

A hasty review of the SL&P year that was 2018

Year in review stories are catnip to me, so I figured I might as well use an unexpected little pocket of free time to create my own listing of big events in 2018 based on a lightning quick review of blog posts from the past year.  This listing is not representative or even all that reflective, and I welcome reader input on stories forgotten or unmentioned (or poorly ranked).  So, for giggles and comment, here is a list of post titles and links providing an imperfect, too-quick review of some notable stories from the past year:

25. Congress finally enacts "Paroline fix" that should improve victim restitution in federal child porn cases 

24. The Matthew Charles saga: another sad example of why complete abolition of parole was a mistake for federal sentencing

23. Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence 

22. What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings 

21. Noticing the continued decline of the federal prison population (for now) ... and a story embedded with intricacies 

20. Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner 

19. "Charlottesville Jury Recommends 419 Years Plus Life For Neo-Nazi Who Killed Protester" 

18. Examining thoughtfully modern trend to prosecute overdose deaths as homicides

17. California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly 

16.  Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison

15. DPIC releases year-end report noting that 2018 was "fourth consecutive year with fewer than 30 executions and 50 death sentences"

14. DOJ casting new marijuana enforcement memo in terms of "rule of law" and "local control"

13. Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

12.  Michael Cohen sentenced to three years in federal prison ... and joins ranks rooting hard for passage of the FIRST STEP Act

11. Washington Supreme Court strikes down state's death penalty based on its arbitrary administration

10. Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

9. Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!! 

8. Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

7. Prez Trump makes (tough) nominations to US Sentencing Commission (notably, these USSC nominees never got a Senate hearing or vote) 

6. How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them? 

5. Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

4. Jeff Sessions is no longer Attorney General of the United States 

3. Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

2. DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy

1. Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

December 30, 2018 in On blogging, Recap posts, Who Sentences | Permalink | Comments (0)

Highlighting continued work (and optimism) on alternatives to incarceration

I have had the great honor and pleasure for many years now of working with folks at the Aleph Institute, a national nonprofit that works on various criminal justice reform and recidivism reduction efforts. Hanna Liebman Dershowitz, who is director of special projects for the alternative sentencing division of the Aleph Institute, has this new New York Law Journal piece headlined "Our Country Grapples With Deepest Challenges Around Sentencing," discussing work on alternatives to incarceration and an event on the topic in the works for summer 2019.  Here is an excerpt:

The nonprofit I work with, the Aleph Institute, harbors a vision we call “Rewriting the Sentence,” wherein the cultural and political shift that has already taken hold in this country produces a complete reordering of our punishment priorities.  Once this shift is complete, we would view incarceration and other separation from community only as an option among many to be used sparingly, only when needed.

At present, we are such an outlying world incarcerator that we rank with the most heartless regimes on the planet.  It always bears repeating that we are not 5% of the world population and yet are responsible for almost a quarter of the world’s imprisoned population.  Across history, incarceration has not always dominated the punishment landscape — indeed, in Biblical law there is no such punishment as incarceration because of the inhumane collateral damage it wreaks.

We at Aleph think there are often legal and humanitarian reasons for the avoidance of custodial methods of correction at every stage of our system — from bail reform and law enforcement assisted diversion upfront to diversion programs, specialty courts and sentencing advocacy at the disposition stage to clemency, reentry support and compassionate release toward the back.

A system that uses evidence-based tools at each stage can deliver the optimal levels of supervision and services to allow each person to thrive and stay out of trouble.  Ideally — and I truly get that all of this sounds idealistic — we can use freed-up incarceration resources to support healthy communities, understanding that equity and thriving neighborhoods are the best prevention tools for crime.

What Aleph has learned from delivering care and support to thousands of individuals and families in prisons and jails all over the country for decades is that helping people function better is superior to an outmoded and misguided approach that inexorably leads to negative results, especially for the children left behind.

Here’s why I am not idealistic, but actually a pragmatist. If we don’t envision how we want the system to work, we will continue to incarcerate people none of us ever intended to incarcerate and to not know who we are incarcerating in a meaningful way.....

Why do I think I will see a true culture change in my lifetime on alternatives to incarceration too? Because we are already seeing the seeds of the change, to wit: in a recent meeting with the chief of alternatives for a major metropolitan district attorney, I was told that in recent years incoming prosecutors ask whether there are alternatives they can offer to defendants. In a decade, perhaps they will expect them.

So policy wonks and idealists alike, please stay tuned as we seek to rewrite a legacy of sentencing myopia. Aleph is convening criminal justice stakeholders next June at Columbia Law School for the Rewriting the Sentence 2019 Summit, and we will announce significant new initiatives thereafter. For more information, please visit askssummit.com.

December 30, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Friday, December 28, 2018

Spotlighting how FIRST STEP Act implementation challenges and uncertainty has already begun

A week ago the FIRST STEP Act was signed into law, and my first post celebrating this achievement stressed the challenging and critical work of implementing the law well.  Today, this new Washington Examiner piece, headlined "Prisoners due for release under First Step Act stuck in limbo," spotlights that implementation difficulties have already begun.  Here are excerpts:

President Trump shortened the sentences of thousands of prisoners by signing the First Step Act days before Christmas.  But one week later, inmates and their frustrated families say they are afraid the gift won’t be delivered in time to hasten release dates.

Silence from the Federal Bureau of Prisons is creating fear that foot-dragging will eat into reductions mandated by Trump's most significant bipartisan policy achievement.  The new law gives many prisoners an extra seven days off their sentences for each year of good behavior, but it's unclear when authorities will make the calculations.

“Literally, my brother has packed his stuff and is waiting for the call,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years of a drug sentence. Shipp had a November 2019 release date, but Ajamu believes he may be going home immediately under the new law, which would shave off about 175 days, potentially making him eligible for a halfway house or home confinement, which is typical at the very end of sentences. “I’m thinking to myself, ‘I don’t know what to do. I’m feeling anxious. I don’t want to be at the wrong place when he calls,’” said Ajamu, who plans to pick up her brother.

“Some families have loved ones who they know would be home tomorrow,” said Kevin Ring, president of Families Against Mandatory Minimums and a former executive director for the conservative Republican Study Committee. “People are very concerned about when this is going to get done. Congress has passed this. It's in effect."

Advocates estimate that 4,000 federal prisoners will be released almost immediately under the good-time expansion. A smaller number can petition courts for old crack cocaine sentences to be reduced.

For Craig Steven Houston, 48, the good-behavior change alone could mean 210 days off a 30-year crack cocaine sentence. He had an August release date, but the law means he could get out in just 22 days, on Jan. 19., according to his family. “We want to be prepared and know what's going on,” said Steve Henderson, who was raised with Houston and considers him a brother.

Concerned families are calling the Bureau of Prisons’ Designations and Sentence Computation Center, which calculates sentences. But some say calls haven’t been answered. “When you have an infraction in prison, when they take the time away from you, they calculate it immediately... the next day it is gone,” Henderson said. “You have people across the country who are supposed to be home. All of a sudden DSCC isn't answering their phones.”

It’s unclear what effect the ongoing partial government shutdown is having. Bureau of Prisons spokespeople did not respond to multiple requests for clarification this week. Part of the delay may be explained by lack of implementation guidance. "We are currently reviewing the new legislation to determine implementation guidance for BOP and other DOJ components," said Justice Department spokesman Wyn Hornbuckle. Hornbuckle noted that more than 80 percent of the department workforce is working through the government shutdown, which began hours after Trump signed the First Step Act.

December 28, 2018 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

"Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again"

The title of this post is the title of this new paper authored by Michael Tonry no available via SSRN. Here is its abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders.  Forty years ago, two-thirds of people predicted to be violent were not.  For every two “true positives,” there were four “false positives.”  Contemporary technology is little better: at best, three false positives for every two true positives.  The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. 

All prediction instruments use ethically unjustifiable information.  Most include variables such as youth and gender that are as unjust as race or eye color would be.  No one can justly be blamed for being blue-eyed, young, male, or dark-skinned.  All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders.  All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

December 28, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, December 27, 2018

More than 40 months after death sentencing, lawyers for Boston bomber Dzhokhar Tsarnaev file their 1000+-page appellate brief with First Circuit

As reported in this local article, headlined "Lawyers: Tsarnaev ‘should not have been tried in Boston’," a very long appellate brief has been filed in a very high-profile federal capital case.  A federal jury handed down Dzhokhar Tsarnaev death sentence way back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now, as Prez Trump heads into the second half of his term, Tsarnaev's team of lawyers has fully briefed his complaints about his trial and sentencing.  Here are the basic details:

Boston Marathon bomber Dzhokhar Tsarnaev’s appellate team presented their oft-delayed opening argument Thursday, urging sparing him a federal execution and allowing him to be retried for the 2013 Patriots Day terror attack that killed an 8-year-old boy and two women.  Their premise is summed up in the opening line: “This case should not have been tried in Boston.

“Forcing this case to trial in a venue still suffering from the bombings was the District Court’s first fundamental error, and it deprived Tsarnaev of an impartial jury and a reliable verdict, in violation of the Fifth, Sixth, and Eighth Amendments,” the brief states.

The partially redacted document filed in the U.S. Court of Appeals for the First Circuit spans 1,124 pages, nearly half of which is the 500-page opening brief alone.

Absent a new trial, Tsarnaev’s team is asking the Appeals Court to reverse his death sentence and order a punishment of life imprisonment.

Tsarnaev, 25, has been in solitary confinement at the federal Supermax prison in Florence, Colo., since his 2015 conviction.  Tsarnaev’s trial attorneys made repeated bids for a change of venue.  His appeal focuses on and echoes several familiar protests raised during his trial, chief among them the argument that he was a pawn of his domineering big brother, Tamerlan Tsarnaev.

Among other things, the public defenders accuse Tsarnaev’s jury forewoman, a restaurant manager his attorneys tried to get removed, of retweeting a social media post calling the University of Massachusetts Dartmouth sophomore a “piece of garbage”  before she received a juror summons, but that she claimed during questioning for her suitability to serve she had not “commented on this case.”  A second juror, a male municipal worker, outright “disobeyed the Court’s instructions,” the brief asserts, by joining a Facebook discussion about the case before he was seated....

Tsarnaev’s appeal blames his 26-year-old brother for his involvement, calling Tamerlan “a killer, an angry and violent man” who “conceived and led this conspiracy.” And but for his influence, “Jahar would never have been on Boylston Street on Marathon Monday.

“Tsarnaev admitted heinous crimes,” the lawyers acknowledge, “but even so — perhaps especially so — this trial demanded scrupulous adherence to the requirements of the Constitution and federal law. Again and again this trial fell short.”

The Tsarnaevs detonated two homemade pressure-cooker bombs packed with shrapnel near the marathon finish line in Copley Square 12 seconds apart on April 15, 2013.  Three spectators were killed — 8-year-old Martin Richard of Dorchester, Krystle Campbell, 29, a restaurant manager from Medford, and Boston University graduate student Lingzi Lu, 23.  More than 260 other people were injured. Sixteen of them lost limbs in the blasts.  Three days later, the brothers shot and killed MIT Police Officer Sean Collier, 27, in his cruiser during an ambush on campus and failed attempt to steal his service weapon.

UPDATE: Thanks to a helpful tweet, I now see that the 500-page brief is available at this link. And there I noticed the final notable section starts this way:

XV. Under The Supreme Court’s Eighth Amendment Jurisprudence, This Court Should Vacate Tsarnaev’s Death Sentences Because He Was Only 19 Years Old At The Time Of The Crimes.

Tsarnaev was just 19 years old when he committed the crimes for which he was sentenced to death. According to now well-established brain science, and increasingly reflected by changing law around the country, the physical development of the brain and related behavioral maturation continues well through the late teens and early 20s. Consistent with the Supreme Court’s Eighth Amendment jurisprudence and a recent resolution adopted by the American Bar Association, this Court should hold that those who commit their crimes as “emerging adults,” when they were under 21 years old, are categorically exempt from the death penalty.

December 27, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"

The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:

With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.

But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking.  And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.

Here are some highlights (and lowlights) of American criminal justice in 2018:

The FIRST STEP Act passed (finally)....

Marijuana legalization continued apace....

Civil Asset Forfeiture under the microscope....

Attorney General Jeff Sessions shown the door....

The war on sex trafficking leads to online censorship, not safety....

Treating opioid overdose deaths as murders....

Reducing dependence on cash bail....

This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.

I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.

December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Spotlighting the enduring challenges posed by risk-assessment mechanisms built into FIRST STEP Act

LawProf Brandon Garrett has this important new Slate commentary headlined "The Prison Reform Bill’s Implementation Will Be Tricky; Here’s how to ensure it’s a success." I recommend the piece in full, and here are excerpts:

The First Step Act, the federal prison reform bill that President Donald Trump signed into law on Friday, represents a bipartisan and major effort at making the criminal justice system fairer.  This step will only be a baby step, however, if the engine that drives the entire piece of legislation — risk assessments of federal prisoners’ likelihood to reoffend — is not used carefully and with sound scientific and public oversight.

The statute ... allows federal prisoners, who now number about 180,000, to earn credits toward early release based on rehabilitative programs and their risk of reoffending.  The statute states that an algorithm will be used to score every prisoner as minimum, low, medium, or high risk.  But the legislation does not say how this algorithm will be designed. The Senate’s version of the First Step Act, which refers to “risk” 100 times, calls for a “risk and needs assessment system” to be developed in 210 days, and then made public and administered to every federal prison within the following 180 days.

That may not be nearly enough time to carefully study all of the questions raised by creating such a massive system.  Take as an example the experience in Virginia, which has been hailed as a national model and “leading innovator” by the American Law Institute for using risk assessment to divert low-risk offenders from prison.  Virginia spent several years developing its risk assessment system.  The Virginia Criminal Sentencing Commission carefully obtained public input, scientific evaluations, and pilot studies, before implementing it statewide.

But in a recent series of studies of the effort to divert prisoners in Virginia, John Monahan, Alexander Jakubow, Anne Metz, and I have found that there is wide variation in how courts and judges apply this risk assessment....  People are not algorithms.  The statute’s fairness will hinge on the discretion that prison officials exercise, informed by the scores from a risk assessment but also by their own judgment.  The First Step Act’s success will similarly depend on resources for real rehabilitative programs.  It calls for evidence-based evaluation of such programs, but that research will also take time.

While using an evidence-informed tool can be better than simply leaving everything to prison officials’ discretion, there needs to be more than buy-in by the decision-makers — the right tools need to be used.  Michelle Alexander and others have raised concerns, for example, with risk assessments that rely on information about prior arrests or neighborhood information that can produce stark racial bias.  The Senate’s version of the act speaks to the potential for bias and asks the comptroller general to conduct a review after two years to identify “unwarranted disparities.”  The act also calls for an independent review body that includes researchers who have studied risk assessment and people who have implemented it.  These are important steps.  Involvement of scientists and the public will be needed to consider whether invidious and potentially unconstitutional discrimination results — otherwise, protracted constitutional litigation challenging these risk assessments will be a foregone conclusion.

Still, there is much that is positive about the bill’s many provisions dealing with risk.  The First Step Act emphasizes not just recidivism but also programs that support rehabilitation.  It is noteworthy that the legislation calls for re-evaluation of prisoners each year so that risk scores are not set in stone. All prisoners are able to reduce their classification.  This should be taken seriously.  The risk of any person may decline dramatically over time simply as a matter of age, as the U.S. Sentencing Commission documented in a study last year.

The statute also makes the attorney general the risk assessor in chief — with input from the independent scientific reviewers — of the risk assessment used on 180,000 prisoners each year.  That scientific input is critical, and it should be solicited from the broader scientific community.  It’s also worth noting that the Department of Justice has recently shut down key science advisory groups; this law hopefully takes an important first step toward bringing science back in.

December 27, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, December 26, 2018

Another dive into the choppy waters of Miller and Montgomery implementation

I am sure I have posted any number of articles highlighting that implementation of the Eighth Amendment limit of juvenile life without parole sentences has been choppy at best (see here and here and here for a few more examples). The latest iteration of this depressingly evergreen story comes from Mother Jones here under the headline "The Supreme Court Said No More Life Without Parole for Kids. Why Is Antonio Espree One of the Few to Get Out of Prison?".  I recommend this long piece in full, and here is a taste:

As a result of [the Graham and Miller and Montgomery] decisions, the number of states banning life without parole for children in all cases, not just in mandatory sentencing schemes, has quadrupled since 2012. Of the more than 2,600 juvenile lifers in 2016, about 1,700 have been resentenced.

But although Justice Kennedy stated that all but the “rarest of juvenile offenders” should get a shot at parole, some prosecutors continue to argue that many do not deserve this benefit, or that they should serve years longer in prison before they can get out. So far, only 400 juvenile lifers nationwide have been freed.

In part, that’s because the Supreme Court gave states leeway to decide how to review lifers’ cases, leading to inconsistencies across the country. In Pennsylvania, home to the nation’s second-biggest juvenile lifer population, prosecutors are required to “prove beyond a reasonable doubt” that a defendant can never be rehabilitated if they want to deny the option of parole during resentencing; otherwise, the presumption is he should be given a second chance. So far, the state has released more than 150 juvenile lifers, many under the jurisdiction of Philadelphia’s District Attorney Larry Krasner, who campaigned last year on a platform of reducing mass incarceration.

But in Michigan, where 363 juvenile lifers were serving mandatory sentences in 2016, there is no such requirement, and prosecutors have argued that nearly two-thirds of juvenile lifers are those rarest offenders who should be kept in prison for good. “Justice in this country is largely based on where you live,” says Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth, an advocacy group.

Even Henry Montgomery, who won his Supreme Court case, isn’t free. In February, the Louisiana parole board rejected his request for release, arguing that he had not finished enough classes in prison.  His lawyers countered that he hadn’t been given much of a chance: For his first three decades at Louisiana’s notorious Angola prison, lifers like him were prohibited from taking classes. (About a third of juvenile lifers nationally say they have been denied access to prison educational programs.)  When the courses opened up, he was deemed ineligible to complete his GED.  A judge described him as a model inmate, but family members of the sheriff’s deputy he killed testified against him at the parole hearing.  So Montgomery, now 72 years old, was denied.  He’ll have to wait a year to reapply.

December 26, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable pipeline provisions in FIRST STEP Act in the wake of litigation history surrounding FSA of 2010

Long-time readers surely recall the legal uncertainty that followed the last congressional reduction of severe mandatory sentencing provisions in the Fair Sentencing Act of 2010 with respect to "pipeline" cases, i.e., cases in which offense conduct took place, but a sentence had not yet been imposed, before the enactment of the FSA's new crack sentencing provisions.  This legal uncertainty made it all the way up the Supreme Court in Dorsey v. US, 567 U.S. 260 (2012), and here is how the Court's 5-4 majority explained and resolved the issue:

In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124Stat. 2372. The new statute took effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders.

Fast forward to the present day, and Congress this time around has figured out that it can and should address these pipeline issues directly when making statutory sentencing modifications. Specifically, here are the operative pipeline instructions that appear in the FIRST STEP Act with its three important sentencing changes:

SEC. 401. REDUCE AND RESTRICT ENHANCED SENTENCING FOR PRIOR DRUG FELONIES....

(c) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

SEC. 402. BROADENING OF EXISTING SAFETY VALVE....

(b) APPLICABILITY. The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act.

SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, UNITED STATES CODE.... 

(b) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

Put simply, Congress in the FIRST STEP Act has expressly provided that all cases in the pipeline, as long as a defendant has not yet been sentenced, are to be sentenced in accord with the new and lowered mandatory minimums (section 401) and without stacked 924(c) charges (section 403).  But, in slight contrast, only those pipeline defendants who have not yet been convicted, are able to be sentenced with the benefit of the new and expended safety valve provision (section 402) which allows defendants with a bit more criminal history to avoid the application of otherwise applicable drug mandatory minimums.

I am pleased to see Congress this time around directly addressing pipeline issues and thereby answering the most basic questions about how pending cases are to be handed.  And yet, ever eager to issue spot, I already have some follow-up questions:

  1. Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?
  2. Or imagine a defendant who might benefit from the broader safety valve and has not yet been sentence but did plead guilty earlier in 2018. Could this defendant move to vacate his plea simply in order to plead guilty anew in 2019 so that his conviction will then be "entered on or after the date of enactment of" the FIRST STEP Act?

The pipeline issues after the Fair Sentencing Act of 2010 impacted perhaps thousands of defendants, whereas the issues I raise above may only impact dozens. But for those particular defendants, what is still left uncertain might still certainly be a very big deal.  (I also suspect there are additional pipeline issues I have not yet imagined, and I welcome input on this issue and all other relating to FIRST STEP Act implementation.)

December 26, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Bernie Madoff's secretary wants to use new Trump law to get out of jail early"

The title of this post is the juicy headline of this notable new ABC News article about a notable defendant eager of make use of the FIRST STEP Act to seek release from federal prison.  I call the headline juicy in part because of the Bernie Madoff connection, as well as the fact that the FIRST STEP Act is described as the "new Trump law."  Here are excerpts:

One of the five employees of Bernie Madoff convicted in a $20 billion Ponzi scheme is seeking early release from prison based in part on the new criminal justice reform law signed last week by President Donald Trump. Annette Bongiorno, who was Madoff’s longtime secretary, has been in prison since February 2015 and asked the judge to order her release no later than March 2019, more than a year before her scheduled release date.

In a letter to U.S. District Judge Laura Taylor Swain, defense attorneys cited the First Step Act that they contend makes Bongiorno, 70, eligible for home confinement, since she is at an advanced age and has served two-thirds of her sentence. "The new statute permits her to make a direct application to the court for this relief, and Mrs. Bongiorno respectfully makes the application," defense attorney Roland Riopelle wrote.  "She remains an 'old fashioned' family oriented person who would benefit greatly from the release to home confinement that the First Step Act provides," he wrote.

A spokesperson for federal prosecutors in the Southern District of New York was not immediately available to respond to a request for comment on Bongiorno's bid for early release.  The office declined to comment to a similar request for comment by the Associated Press....

Bongiorno was convicted in 2014 after a six-month trial during which she insisted she did not know her boss was running what is widely-seen as the biggest Ponzi scheme in American history.  Madoff, who is now 80, is serving a 150-year sentence following conviction on a fraud that was exposed a decade ago.

In his letter to the judge, Riopelle called Bongiorno a "model prisoner" who has served her sentence at FCI Coleman medium security prison in Sumterville, Florida, "without a disciplinary violation of any kind." Riopelle said she was in decent health and in "generally good spirits" though finds the holiday season "a bit depressing."

Without seeing the filing referenced in this article, it is unclear to me if Bongiorno is seeking so-called "compassionate release" or is seeking relief under an elderly prisoner reentry pilot program.  The FIRST STEP Act has important new provisions making available two different possible means for elderly prisoners to seek release to home confinement or sentence modification, but the legal requirements and process are distinct in important ways.  Bongiorno certainly will not be the only older prisoner looking to take advantage of the FIRST STEP Act, and I expect there could be a lot of interesting jurisprudence emerging in the weeks and months ahead on these fronts.

December 26, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Monday, December 24, 2018

Lamenting lack of retroactive application of new sentencing changes in FIRST STEP Act (... and so rooting again for robust clemency)

This recent piece from The Guardian, fully headlined "Current inmates feel left behind by Trump's criminal justice reform bill; First Step Act reduces the mandatory sentence for three-strikes offenders but the provisions will not be made retroactive," spotlights how certain inmates have gotten left behind even as the inappropriateness of their sentences inspired key sentencing reforms in the FIRST STEP Act.  Here are excerpts:

On paper, Chris Young seems exactly the kind of person a prison reform bill ought to release from federal custody. In the eight years since he was last free, Young has become an avid reader, taught himself to write computer code and worked as a tutor for fellow prisoners. Right now he’s reading Yuval Noah Harari’s Homo Deus “for fun”.  He also says that since he can’t get real-world practice, he re-reads the same passage of a programming book every day after lunch, to make sure it’s committed to memory.

When he was 22, Young was arrested on a third low-level drug charge. Under so-called “three strikes” laws, he was given a mandatory life sentence.  For decades, in cases involving repeat drug offenders, such laws have stripped federal judges of discretion. The judge who sentenced Young, Kevin Sharp, was so shaken by the experience he retired shortly after.  “What I was required to do that day was cruel,” Sharp tweeted earlier this year.

The bipartisan First Step Act, signed into law by Donald Trump on Friday, softens that “cruel” requirement for federal judges, reducing the mandatory sentence in such cases to 25 years. But it will not do anything for Young.  In one of many compromises made by progressive reform advocates to secure conservative support, this and several other provisions were not made retroactive.  “I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” Young told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the … actual humans that their choices and politics affect.”...

Advocates believe [the Act] can be a launching point for state and local reform which could have a much greater impact on the US inmate population. After all, just 10% of people incarcerated in the US are in the federal system.  “I absolutely think that this one is going to be catalytic towards other de-carceration campaigns on the local and state level,” said Glenn Martin, a formerly incarcerated reform advocate who helped bring dozens of former inmate-led groups on board for the First Step Act.

“I think that the Senate — a conservative Republican Senate — has just given permission to conservatives all over the country [to become] engaged in criminal justice reform.” Nonetheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow”.

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

That includes people like John Bailey, a 71-year-old inmate of the federal prison in Hazleton, West Virginia which is nicknamed “misery mountain”. Bailey’s brother Oliver said he was struggling to understand the logic of the changes not applying to inmates like John, who was imprisoned in 1992 on a non-violent drug charge. “If you recognize the injustice now,” asked Bailey, “how come it doesn’t apply to those that suffered the same injustice before?”

Advocates who worked on the bill said conservatives and politically vulnerable Democrats opposed retroactivity because of how releasing prisoners early might resonate with voters.

There is one bright spot for the Baileys. One provision of First Step that does apply to current inmates is a requirement that prisoners be housed no more than 500 driving miles from their home. Bailey, who is from St Petersburg, Florida, has spent his prison life in Leavenworth, Kansas and now West Virginia, thousands of miles away. Oliver has not seen John since he was jailed. “At this point something’s better than nothing,” he said. “We need to progress from here.”

It’s a common sentiment. Chad Marks is serving a 40-year sentence on drug conspiracy charges, thanks to another provision First Step will restrict. Marks’ sentence was enhanced by “stacking” language in federal law which dramatically increases a sentence if an offender possesses a firearm in the commission of a drug crime, whether or not it is used. “I don’t understand how lawmakers can say that doing this is wrong,” he said, “and that they are going to fix it, but not apply it retroactively. That was a big blow. What has my focus and attention right now is the fact that lawmakers did something, but my focus is also on a second step coming.”...

Young, Bailey and Marks continue to wait for a second step. While they do, all three must place their primary hope for release in an act of clemency: a pardon or commutation issued by the president. Young’s case has been endorsed by Kim Kardashian, who successfully lobbied for the release of another federal prisoner, Alice Johnson, in June. Marks said he was “more than hopeful that I will find relief through clemency”.

“I am praying that president Trump will find me worthy of mercy and grace,” he said. “I won’t let him down or disappoint him.”

As regular readers know, Prez Trump has been letting me down and disappointing me by having so far failed to make good on all the talk from earlier this year that he was looking at "3,000 names" for possible clemencies. I sincerely hope that Prez Trump and those assisting him on clemency matters are going to give extra attention to persons serving extreme sentences that would no longer be applicable under the new sentencing provisions of the FIRST STEP Act.  (I also think persons serving particularly extreme sentences should file (or seek to re-file) constitutional or other challenges to their sentences that might be emboldened by FIRST STEP Act reforms, but I will discuss this idea in a subsequent post.)

A few of many recent related posts: 

December 24, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Fifty Years of American Sentencing Reform — Nine Lessons"

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

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Saturday, December 22, 2018

More notable state clemency developments for the holiday season

In this post a few days ago, I flagged some notable recent clemency grants by Governors in Arkansas and Colorado and Pennsylvania (while also lamenting that Prez Trump has not followed up a lot of big clemency talk with any big clemency action). With the Christmas holiday nudging every closer, I am not surprised (though still pleased and grateful) that Governors in a few more states are using the ink their clemency pens. Here is another round-up of notable new state clemency stories:

Colorado: "Hickenlooper orders clemency for 33 Colorado offenders, including 7 men convicted of murder"

Michigan: "Gov. Rick Snyder grants clemency to lifer Melissa Chapman, 60 others"

Pennsylvania: "Wolf grants clemency to two more inmates, including one midstate woman"

Tennessee: "Tennessee Governor Granted Clemency To 11 People, Cyntoia Brown Not Included"

Texas: "Christmas clemency: Gov. Greg Abbott pardons six Texans, two for marijuana possession"

December 22, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal judiciary has funds for three weeks of shutdown operations ... so let the FIRST STEP Act litigation begin

This notice from the US Courts, headed "Judiciary Operating During Shutdown," reports that "despite a partial shutdown of the federal government that began on Dec. 22, 2018, the Judiciary remains open and can continue operations for approximately three weeks, through Jan. 11, 2019, by using court fee balances and other funds not dependent on a new appropriation."  Here is more:

Most proceedings and deadlines will occur as scheduled. In cases where an attorney from an Executive Branch agency is not working because of the shutdown, hearing and filing dates may be rescheduled.  The Case Management/Electronic Case Files (CM/ECF) system also will remain in operation for electronic filing of documents.

If the shutdown were to continue past three weeks and exhaust the federal Judiciary’s resources, the courts would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers.  Under this scenario, each court and federal defender’s office would determine the staffing resources necessary to support such work.

I sure hope the folks inside the Beltway can get their act together to avoid having the shutdown extend past January 11, and my law nerd heart is warmed by reading "Most proceedings and deadlines will occur as scheduled" until then. Moreover, as the title of this post hints (and as I will be discussing in a few follow-up posts), I think there some important new legal arguments to make (and some old legal arguments that are stronger) now that the FIRST STEP Act is the law of the land. I sincerely hope lawyers and advocates are already getting at least some of those arguments ready for court, and thus I am pleased the courts are still open for business despite the shutdown.

December 22, 2018 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Friday, December 21, 2018

Bureau of Justice Statistics releases results of the 2017 National Crime Victimization Survey

As reported in this press release and as fully detailed in this 30-page report, the Bureau of Justice Statistics has just published the results from its annual survey of households about their experiences with crime.  Here is how the survey is exampled in these documents: "The NCVS collects information on nonfatal violent and property crimes against persons age 12 or older, whether or not these crimes were reported to police, from a nationally representative sample of U.S. households. Respondents are asked about the number and characteristics of crimes they have experienced during the prior six months." And here are the statistical basics via the press release:

There was no statistically significant increase from 2016 to 2017 in the number of residents age 12 and over who had been victims of violent crime during the prior six months, while there was a statistically significant increase from 2015 to 2017. The overall number of victimizations that occurred, reflecting the total number of times people were victimized, did not increase significantly over either a 1- or 2-year span.

These 2017 findings follow a statistically significant increase in the number of victims of violent crime from 2015 to 2016.

From 2016 to 2017, trends were mixed among individual crime types. The rate of robbery victimizations rose from 1.7 per 1,000 residents age 12 or older in 2016 to 2.3 per 1,000 in 2017. Meanwhile, the burglary rate dropped from 23.7 victimizations per 1,000 households in 2016 to 20.6 per 1,000 households in 2017. In the NCVS, robbery is defined as theft or attempted theft directly from a person by force or threat of force, and burglary is the unlawful or forcible entry or attempted entry of a residence or other non-commercial structure, such as a garage or shed.

The portion of U.S. residents age 12 or older who had been a victim of violent crime during the prior six months increased from 0.98 percent in 2015 to 1.14 percent in 2017. This 2-year rise in the prevalence of violent crime was driven primarily by an increase in simple assault (which is generally non-felony assault).

For the second straight year, the number of victims of violent crime was higher than in 2015. The number of persons age 12 or older who had been victims of violent crime rose from 2.7 million in 2015 to 2.9 million in 2016 (up 9 percent from 2015) and 3.1 million in 2017 (up 17 percent from 2015). The 2-year increase in the number of violent-crime victims was 455,700.

From 2016 to 2017, the portion of persons victimized by violent crime increased among females, whites, those ages 12 to 17, those age 65 and over, and those who were divorced or had never been married. The portion of Asians victimized by violent crime, however, decreased. From 2015 to 2017, the portion of persons who were victims of violent crime increased among males, whites, those ages 25 to 34, those ages 50 to 64, those age 65 and over, and those who had never been married.

Overall, property crime decreased from 2016 to 2017, falling from 118.6 victimizations per 1,000 households to 108.4. This decrease followed an increase in property crime the previous year, from 110.7 victimizations per 1,000 households in 2015 to 118.6 in 2016.

Based on the 2017 survey, about 45 percent of violent victimizations and 36 percent of property victimizations were reported to police. The percentage of rapes or sexual assaults that were reported to police rose from 23 percent in 2016 to 40 percent in 2017.

I think it fair to say that this metric determined that violent crime ticked up a bit in 2017, but not as much as in prior years, and property crime during the same period trended downward.

December 21, 2018 in National and State Crime Data | Permalink | Comments (1)

Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

President Donald J. Trump officially signed the FIRST STEP Act into law today, and I am so very excited that a significant piece of sentencing and prison reform finally became law after years and years and years of talk and effort by so many.  I wish the reform was even more significant, especially on the sentencing side, but something is better than nothing and but for a modest reform to crack sentencing terms, we really have had nothing positive coming from Congress on the sentencing side in more than 20+ years.

The White House has this extended "fact sheet" about the FIRST STEP Act under the heading "President Donald J. Trump Secures Landmark Legislation to Make Our Federal Justice System Fairer and Our Communities Safer."  Here is an excerpt:

CREATING SAFER COMMUNITIES AND A FAIRER FEDERAL JUSTICE SYSTEM: The First Step Act will make our Federal justice system fairer and our communities safer.

  • The First Step Act will help prepare inmates to successfully rejoin society and enact commonsense sentencing reforms to make our justice system fairer for all Americans.
  • Among many reforms, the First Step Act will:
    • Promote prisoner participation in vocational training, educational coursework, or faith-based programs by allowing prisoners to earn time credits for pre-release custody.
    • Expand prison employment program opportunities.
    • Enact fair, commonsense reforms to mandatory minimums.
    • Eliminate the three-strike mandatory life sentencing provisions.
    • Give certain offenders the ability to petition the courts for a review of their sentences.

As the title of this post highlights, I am viewing the enactment of the FIRST STEP Act only as completing stage 1 of achieving significant federal criminal justice reform. Stage 2 involves the critical work of implementation, and so many of the large and small elements of the the FIRST STEP Act involve important and challenging implementation issues. Most obviously, the risk assessment system for prisoner programming and time credits needs to be developed and deployed in a fair and effective way and that is easier said than done. And the instruction that federal prisoners be house, whenever possible, within 500 miles of their homes is easier to describe than to ensure. And the new authority created by the FIRST STEP Act for courts to consider directly so-called "compassionate release" motions for sentence reductions presents a profound opportunity and a profound challenge for taking a second look at extreme (and extremely problematic) sentences.

I could go on and on, but I will save FIRST STEP Act "issue spotting" for the days and weeks ahead (I have created a new category archive for this very purpose).  For now I will just savor needed legal change and congratulate all those on the front lines who worked so very hard to help make this day possible.  Wow!

December 21, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (6)

Some holiday season highlights from Marijuana Law, Policy & Reform

Though it has been well over a month since I did a round-up of posts of note from my blogging over at Marijuana Law, Policy & Reform, but this is not because there have not been lots of noteworthy marijuana reform developments.  Rather, so much is going on in this space, I cannot come close to keeping up.  Still, here are just some of my recent posts from MLP&R that may be of particular broader criminal justice interest:

December 21, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

Thursday, December 20, 2018

Some accounts of what should come after the FIRST STEP Act

So far I have be disinclined to blog about what should come after the FIRST STEP Act, in part because the bill is still not yet officially law and in part because I think the most important (and challenging) work right after the enactment of the FIRST STEP Act is taking the many steps necessarily to effectively and expansively apply and implement all of its provisions. But, perhaps unsurprisingly given the modest nature of so many of the provisions of the FIRST STEP Act, a number of fine folks are already writing fine things about next steps. Here is a sampling of some of this writing:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation | Permalink | Comments (4)

Second Circuit panel reverses federal death sentence based on "prosecutorial error" during sentencing phase

A helpful reader made sure I did not miss this 146-page(!) Second Circuit opinion in US v. Aquart, No. 12‐5086 (2d Cir. Dec. 20, 2018) (available here). Here is an overview from the start of the opinion for the panel:

Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3) he was prejudiced by prosecutorial misconduct in summation. As to sentence, Aquart’s challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating factors, and (3) unconstitutionality of the death penalty both generally and as applied to his case.

The panel affirms Aquart’s conviction but, based on prosecutorial error, vacates his death sentence and remands the case for a new penalty hearing.

There is too much in the 139-page Aquart opinion for the court for me to summarize it here.  But I noticed that a former boss of mine, Judge Calabresi, has this amusing paragraph on an important issue in his short concurrence:

§2.b. Whether Aquart’s Death Sentence is Constitutionally Disproportionate. Because, as the Majority correctly explains, existing Supreme Court Law does not mandate proportionality review, the question of whether, if it did, Aquart would pass that test is entirely hypothetical. (I’m too much an academic to call it academic.) It need not be reached, and I decline to do so

December 20, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

FIRST STEP Act approved by US House by vote of 358 to 36, will become law as soon as Prez Trump signs!!

As reported in this UPI piece, the US House of Representatives "overwhelmingly approved a bill overhauling the country's criminal justice system Thursday, sending the legislation to President Donald Trump's desk for a signature." Here is more:

The chamber approved the First Step Act with a 358-36 vote two days after the Senate passed it by a similar margin of 87-12. Lawmakers expect Trump to sign the legislation into law Friday.

The House approved a different version of the legislation earlier this year and had to amend it to make the Senate version.

Trump has described the reform as "reasonable sentencing reforms while keeping dangerous and violent criminals off our streets." "Congress just passed the Criminal Justice Reform Bill known as the #FirstStepAct. Congratulations!  This is a great bi-partisan achievement for everybody.  When both parties work together we can keep our Country safer. A wonderful thing for the U.S.A.!!" he tweeted.

House Speaker Paul Ryan welcomed passage of the legislation, saying it's something he's "believed in for a long time."

"These reforms to our criminal justice system will not only reduce recidivism and make communities safer, but they will help people into lives of purpose," he said.

HUZZAH!!!

Interestingly, when the prison-reform only versions of this bill received a House vote back in May, only two DOP members voted against it while 30+ Dems voted not because of a concern the bill did not go far enough. With the new version including a few modest sentencing reforms, this time around all Dems voted yea and all 36 nays came from GOP members (as detailed in this final vote tally).

Some of the most recent of many prior related posts as FIRST STEP Act gets ever closer to becoming law:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

State clemency developments during a holiday season still full of (foolish?) hope for clemency boldness from Prez Trump

In this post last week, I noted Prez Trump's tweet talking about how criminal justice reform "brings much needed hope to many families during the Holiday Season."  I stressed that long-promised additional clemency action could provide another means for the President to make families happy and hopeful during this special time of year.  (On that front, it is worth recalling that, as posted here, Prez Trump issued his first commutation of Sholom Rubashkin exactly a year ago today.  His other commutations were to Alice Marie Johnson in June 2018, and then Dwight and Steven Hammond in July 2018.)

While we all continue to wait and hope for Prez Trump to use his historic constitutional clemency power to "bring much needed hope to many families," I thought it worth noting some recent actions on this front at the state level.  Specifically, here are relatively recent stories of Governors in Arkansas and Colorado and Pennsylvania making notable use of their clemency powers:

I suspect there may be some more state clemency grants already issued and still to come, though I keep pushing for Prez Trump to be active on this front because I believe it provides a useful push (and perhaps some political cover) for state executives considering clemency petitions. In particular, a GOP Governor is considering a high-profile clemency cases in Tennessee, Cyntoia Brown as reported here, and any kind of peer pressure is likely beneficial in this context.

A few of many recent related posts: 

December 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"California transformed its justice system. But now crime is up, and critics want rollbacks"

La-1545291924-l4bgfb9fvx-snap-imageThe title of this post is the headline of this notable new Los Angeles Times article that merits a read in full. Here is the first part of the piece:

Over the last decade, California has led the nation in reducing its prison population. The state has shortened sentences and diverted some offenders to the counties for incarceration and supervision, transforming California’s criminal justice system into what supporters hope will become a humane model around the country.

But amid the changes, crime has increased in recent years, sparking debate about the causes and giving ammunition to those leading a new effort to roll back some of the reforms.

An analysis by the Marshall Project and the Los Angeles Times found that California’s crime rates remain near historic lows, but overall crime spiked in both 2012 and 2015, the years that immediately followed two major statewide measures aimed at decreasing the number of people in prison. Those jumps were mainly driven by increases in property crimes, particularly thefts from motor vehicles.

After decades of mirroring national downward trends in violent crime, California saw a 12% increase from 2014 to 2017, while the violent crime rate in the other 49 states together increased only 3%, the analysis showed. In 2014, California voters approved a ballot measure that reduced sentences for many low-level drug and property crimes. California’s property crime rate fell slightly in the last two years, but remains 2% higher than it was in 2014. By contrast, the rate of property crimes in the rest of the nation has dropped by 10% over the same period.

There is no simple explanation. Crime trends vary dramatically from county to county. Thirty-one of the state’s 58 counties saw an increase in violent crime last year, while 22 saw an increase in property crimes. The rest stayed flat or declined. What single factor can explain the fact that violent crime went up 6% last year in Los Angeles but fell 6% in Sacramento?

There also have been large differences in the way counties spent the billions in state money allocated to implement the new measures. Some focused on building jails, others on recruiting and deploying police, and still others experimented with collaborative courts and reentry programs.

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To complicate matters, specific crimes come with their own caveats. Reports of rape have increased nationally since 2013, for example, but sexual assaults have traditionally been underreported, and part of the increase stems from the FBI’s decision to broaden its definition of rape in 2013. (The Marshall Project and Times data analysis excluded rape.) Reports of aggravated assaults in California also have increased, but part of that increase is likely due to underreporting from 2005 to 2012 by the Los Angeles Police Department.

California’s criminal reform revolution began in earnest in 2011 after the U.S. Supreme Court approved a cap on the number of inmates in prison. Lawmakers responded by passing Assembly Bill 109, known as realignment, which lowered the prison population by shifting the burden to the counties to house and supervise thousands of inmates convicted of crimes that the law categorized as nonviolent and nonserious.

Three years later, California voters approved Proposition 47, which turned drug use and most theft convictions from felonies to misdemeanors. In 2016, voters overhauled the state parole system by backing Proposition 57, which gave thousands of inmates the chance to earn an earlier release from prison.

The undeniable result of all these measures is that people are on the street today who would have been locked up in previous years. Critics of the reforms argue that they have created a permissive climate that makes policing harder and weakens the deterrent effect of a possible prison sentence.

“There’s no accountability,” said Assemblyman Jim Cooper (D-Elk Grove). “People know they can get away with things. That’s contributed to it. That’s really been a big source of frustration. No one’s going to jail anymore.” Cooper, a retired Sacramento County sheriff’s captain, has been a leading voice in a coalition of prosecutors and law enforcement groups pushing back.

A statewide initiative that will appear on the 2020 ballot would reverse some provisions of Proposition 47, toughen supervision of parolees and disqualify some prisoners from early release.

Backers of the proposed rollback argue that the state’s drug courts, intended as an alternative to criminal courts, are seeing fewer people because prosecutors can no longer force someone into treatment with the threat of a felony. (Some counties, including San Diego, have reported decreases in drug court participation since Proposition 47, but no statewide figures are available.) Those who favor toughening the law also claim counties are struggling to supervise offenders with violent criminal records.

Supporters of the prison downsizing measures dispute any link between the new laws and an increase in crime. They argue that using 2014 as a baseline — the year with the fewest crimes reported in the state since the 1960s — unfairly skews any analysis. “To look at it from a year-to-year basis is very short-sighted,” said Michael Romano, the director of the Three Strikes Project at Stanford Law School who helped write Proposition 47. “We really have had a sustained downward trend over the past decade or two.” He said it’s unlikely any single factor led to an increase in crime, but rather a combination of issues, such as poverty and unemployment, in different counties throughout the state.

Californians for Safety and Justice, a group that co-authored Proposition 47, points out that several states saw larger increases in violent crime than California from 2016 to 2017. (An analysis by The Times and the Marshall Project found 20 states with larger increases in violent crime rates.) They note that none of the recent laws changed penalties for violent crimes.

In 2013, the nonpartisan Public Policy Institute of California found that the first major prison downsizing law, realignment, had no effect on violent crime, but did lead to an increase in auto thefts. In 2016, a prestigious social science journal reached a similar conclusion. Under realignment, people convicted of auto theft, a nonviolent felony, usually serve shorter sentences in their local jails and are released under local supervision.

Two studies published this summer — one by a UC Irvine criminologist and another by the Public Policy Institute of California —found no link between Proposition 47 and increases in violent crime. Both noted a possible link between the initiative and increases in larceny, particularly thefts from motor vehicles, although the Irvine study found those links too tenuous to conclude Proposition 47 was to blame.

After national crime data for 2017 released this fall showed California departed from the national trend — violent crime in California ticked up slightly while it fell slightly across the 49 other states taken together — researchers said they planned to revisit the question of a link between Proposition 47 and violent crime. California’s robbery rate jumped 14% from 2014 to 2017; the rest of the country saw a 7% drop. “It is troubling and deserves more attention,” said Magnus Lofstrom, policy director of corrections at the Public Policy Institute of California.

In addition to praising the work of this article, I wanted to flag the possibility that the stories of crime in California might get even more complicated and unclear if and when we get complete data for 2018. The recent Brennan Center report indicates crime is down in 2018 in some major California cities and that murder is down a lot in all big California cities. If these numbers hold true throughout the state reform advocates will have some important data to push back on the claim that reform rollbacks are needed to enhance public safety.

UPDATE The day after running this general story about an uptick in California crime, the Los Angeles Times followed up with this more encouraging local tale under the headline "Crime once plagued San Joaquin County, but now its jail has empty beds. Here’s what it did right."  The unsurprising take-away is that how and how well a jurisdiction implements criminal justice reform impacts how well criminal justice reform works.

December 20, 2018 in National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Wednesday, December 19, 2018

US Sentencing Commission provides latest "Sentence and Prison Impact Estimate" for FIRST STEP Act

Back in March of this year, as reported in this post, US Sentencing Commission posted on its website this letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office.  This document included a detailed "Sentence and Prison Impact Estimate Summary" of the impact of S.1917, the Sentencing Reform and Corrections Act of 2017.  That analysis not only detailed the expected impact of an array of provisions in the SRCA, but also confirmed my sense that the prison-reform provisions of that bill could be in many ways more important and impactful than many of its sentencing-reform provisions. 

The FIRST STEP Act, notably, has preserved and even expanded upon some of the prison-reform provisions that were in the SRCA, but it only now has a few of its sentencing-reform provisions.  Still, its impact is likely to be considerable (with just how considerable depending upon its implementation).  And, helpfully, the US Sentencing Commission has now produced this new, updated document titled "Sentence and Prison Impact Estimate Summary, S. 756, The First Step Act of 2018 (as passed by the Senate on December 18, 2018)."  Here is that document's basic accounting of the three biggest impact items of the bill: 

Section 101: Risk and Needs Assessment System

Retroactive Impact: 106,114 eligible offenders were in BOP custody as of May 26, 2018.

Section 402: Broadening of Existing Safety Valve (to offenders with up to 4 criminal history points)

Prospective Impact: 2,045 Offenders Annually; -21.8% Sentence Reduction; Decrease of 1,072 beds in BOP 5 years after effective date.

Retroactive Impact: Not authorized in bill.

Section 404: Retroactive Application of Fair Sentencing Act (to defendants previously sentenced)

Impact: 2,660 eligible offenders were in BOP custody as of May 26, 2018.

December 19, 2018 in Assessing Graham and its aftermath, Data on sentencing, FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Latest issue of the Federal Sentencing Reporter covers "The 2018 Debate over Federal Statutory Reform Proposals"

I am still so full of ideas and thoughts about what's next after the Senate's passage of the FIRST STEP Act, and in some future posts I will link to writings about second and thirst steps and so on.  But, coincidentally, just today I got notice that the December 2018 issue of the Federal Sentencing Reporter has just been published on-line, and it is a must-read for those looking to fully understand the background and back-story of the FIRST STEP Act.  

This Issue of FSR is already a bit dated, as it went to press last month before anyone was sure if Congress would get some version of the bill to the desk of the President.  But it still effectively highlights, thought the work and words of a number of leading reform advocates, why the path toward passage was so challenging and so important.  Here is snippet of my short introduction, followed by links to all the the original commentary:

This Issue of FSR provides a snapshot of the discussion and debate over the direction and scope offederal statutory reform proposals through 2018.  As of this writing, in early November 2018, meaningful lawmaking in this area is still just a possibility rather than an achieved reality; the momentum for reform that built through the first part of the year was halted by campaign dynamics as members of Congress turned their attention to the 2018 midterm elections.  But with President Trump reportedly embracing(in August) a compromise proposal that would add some [sentencing reform] provisions to the FIRST STEP Act, and with Senate Majority Leader Mitch McConnell pledging to consider taking up criminal justice reform after the midterms, there remain reasons to be optimistic that all the big reform talk reflected in this Issue might yet produce big reform action before the end of 2018.

The materials in this Issue of FSR include both original commentary and primary documents that provide a flavor of the terms of the debate, in Congress and beyond, as political realities shifted from not believing any reform was possible during the Trump administration to strategizing just what kinds of reform should be prioritized. Georgetown Law Professor Shon Hopwood, a leading advocate for federal reforms, solicited original commentaries for this Issue that canvass the major provisions of key bills working their way through Congress in 2018.  Authored by some of the leading policy advocates involved on all sides of the conversation, these articles showcase why the scope and focus of statutory reform has engendered spirited debate.

December 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Tuesday, December 18, 2018

On cusp of enactment of FIRST STEP Act, a brief trip to the archives via the (not-so-)way back machine

01fbcd89144c25425689e251bd5143038d04f0ceI am so full of ideas and thoughts and ways to celebrate the Senate passage of the FIRST STEP Act, I am not sure what to blog first and in the immediate future.  So, rather than do too much looking forward to what the FIRST STEP Act means when it becomes law (especially because I do not want to jinx anything), I figured I would close out my blogging tonight by doing a little looking back.  Specially, I looked at some archives of posts after Prez Trump got elected, and found these interesting posts (among others) that talked about the possibility of federal criminal justice reform  despite Trump's tough-on-crime rhetoric and his appointment of reform for Jeff Sessions as Attorney General:

I was inspired to review this this interest bit of the recent past in part because the developments this week have has me especially thinking about this post by Bill Otis over at Crime & Consequences from almost exactly two years ago titled "Blowing Smoke on Sentencing Reform."  In that post, Bill Otis explained in his usual manner why he was not convinced by this Bill Keller commentary (also noted above titled) "Why Congress May Bring Criminal Justice Reform Back to Life."   Bill Otis was not entirely off-base to assert that sentencing reform was a uphill battle in this Congress, and he might even defend his analysis by noting that the FIRST STEP Act only includes a few very modest sentencing reforms.  But I bring this up because tonight's overwhelming vote for the FIRST STEP Act ultimately reinforces my belief that there is now a strong (and growing) group of GOP leaders who are very eager to take ownership of criminal justice reform.  And that reality bodes well for the prospects of second and third steps in the next Congress and beyond.

December 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

After rejection of contentious proposed amendments, FIRST STEP Act passed by Senate by vote of 87 to 12!!!!

In this post back in August I wondered "Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?".  Well, it seems I was off by three votes, as tonight the the US Senate voted 87 to 12 to enact the FIRST STEP Act.  With a vote in the House scheduled for later this week, this bill should be on Prez Trump's  desk before the end of this week and law before Prez Trump heads down to Mar-a-Lago for the holidays.  This USA Today article, headlined "Senate passes First Step Act with push from criminal justice groups; bill goes to House," provides this account of today's historic developments:

Alex Gudich and the team from #cut50 weren’t taking any votes for granted. They spent Tuesday knocking on the doors of senators and urging them to support a criminal justice reform bill up for a vote, something they didn't know would happen that night.

"We knew that it would be a tough vote for many members on both sides," said Gudich, deputy director for the national advocacy group pushing to overhaul the nation’s criminal justice system. "We’re here at a very, very pivotal moment."

In a major step in that effort, the Senate voted 87 to 12 late Tuesday to approve the bipartisan "First Step Act" pushed by Sens. Chuck Grassley, R-Iowa, Dick Durbin, D-Ill., Mike Lee, R-Utah and Cory Booker, D-N.J. The bill must now go over to the House for a vote. President Donald Trump has supported the measure....

The Senate defeated amendments proposed by Republican Sens. Tom Cotton of Arkansas and John Kennedy of Louisiana that would have required the Bureau of Prisons to notify victims before a prisoner is released and tracked former offenders after they're released.

Several advocacy groups, including #cut50, and national civil rights groups, including the National Urban League, have been a part of a massive push to get the legislation passed. “It’s been a long time in raising the awareness of how the system of mass incarceration is so destructive and needs to be fixed and reformed,” said Marc Morial, president of the National Urban League. “There’s been a lot of groundwork that has been laid over the years.”

The groups have been working on criminal justice reforms for years, including under then-President Barack Obama, but supporters said the effort got a boost earlier this year with the help of Jared Kushner, President Donald Trump's son-in-law and senior adviser. “We were excited to see a breakthrough this year and a shift," Gudich said.

Gudich called the First Step Act “a compromise bill, but importantly it does not add any new mandatory minimum. There are no sentencing enhancements.” Some advocates, however, have complained the measure doesn’t go far enough. Morial said he would have wanted more provisions to deal with bail reforms and more support for reentry programs, but welcomes the effort. “If we could get a perfect comprehensive bill, we’d do it," he said. “This bill is also the product of some difficult political trade-offs. But it’s better to move this bill with all the things it does than to sit back and wait. We could end waiting another three to four years."

Lawmakers particularly praised the work and input of advocates and civil rights groups. “Formerly incarcerated individuals were incredibly important voices in urging the House to get something done meaningful on prison reform,’’ said New York Rep. Hakeem Jeffries, incoming House Democratic Caucus Chair, a key negotiator. “Nobody is more authoritative on the issue of the victimization that has taken place as a result of over criminalization as a result of the mass incarceration epidemic then those Americans who were directly impacted.”

Indeed, formerly incarcerated people from a host of groups, including #cut50, Prison Fellowship, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, have lobbied Congress to support reforms. Civil and voting rights groups, including the NAACP and the ACLU, have also been key players along with a host of conservative groups. “We as conservatives share common goals,’’ Kevin Roberts, executive director of the Texas Public Policy Foundation, said during a press conference last week. “We want strong communities and institutions. We want those who have done wrong to be punished and then to seize their own redemption without state interference. Most of all we want safe neighborhoods.”

Morial applauded the passage of the First Step Act, but said more needs to be done. “This is something that we have to work on over time. This bill is a good bill, but this not going to be the last effort at criminal justice reform,’’ he said. “There’s already a lot of movement at the state level… This is a growing movement in America – the idea that we have to fix the system of mass incarceration.”

Some of the most recent of many prior related posts:

UPDATE: I just say that Prez Trump has already tweeted here about this significant legislative development, saying "This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved. I look forward to signing this into law!"

December 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)