Friday, November 27, 2020

Exploring what Prez-elect Biden might (or might not) get done for criminal justice reforms

NBC News has this new piece discussing, mostly in vague terms, what criminal justice reform might look like under a Biden Administration. The piece is headlined "Biden was pilloried for his criminal justice record. During his presidency, advocates expect change," and here are excerpts:

Experts told NBC News that now as both political parties appear to have common ground on the issue and significant steps have been made over the past decade, a Biden administration needs to make criminal justice reform more than a talking point.

“The chief cornerstone has already been laid, the groundwork has already been done, the foundation has already been built.  The only thing that he has to go in and do is continue to capitalize off of the momentum,” said Louis L. Reed, the director of organizing and partnerships at #Cut50, a bipartisan criminal justice reform nonprofit.  “Biden needs to hit the ground running on legislation and executive action.”

The Biden transition team did not respond to a request for comment on their plans.  But as a presidential candidate, he proposed sweeping reforms, including ending private prisons, cash bail, and mandatory-minimum sentencing.  He has also been a vocal opponent of the death penalty and police reform.  He has floated, for example, tying federal funds given to police departments to diversity initiatives and community policing, among other areas — rebuffing calls from progressive activists to defund police departments....

Biden’s legislative hopes also hinge on the Democrats winning the majority in the Senate in January.  He has promised a flurry of executive orders on Day 1 in the White House to unwind a number of Trump administration policies and may opt to continue doing so if Republicans obstruct his legislative efforts.  But the effectiveness of executive orders can be limited when it comes to criminal justice reform, which would not affect state and local prisons.

Tackling police reform will be an especially delicate issue after a year in which the deaths of Black Americans at the hands of law enforcement prompted worldwide protests and national reckoning.  Balancing the concerns of police officers and progressive activists looking to slash their budgets and re-imagining policing is one illustration experts say will be one of the hurdles he could face. Biden during the campaign rejected calls to defund the police, angering some progressive activists.  At the same time, he also lost support from police unions, who largely supported Trump.

Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit, is a former Senate Judiciary staffer who worked with Biden on the 1994 crime bill.  He said that he believes Biden’s promise to be a coalition builder is genuine but that he may not be fully prepared to restructure the nation’s sprawling criminal justice system.

“I don't think he sees crime control and justice as a zero-sum game, but will focus on policies that can produce win-wins,” he said, adding that Biden and Vice President-elect Kamala Harris recognize that "many of the policies of the 80s and 90s overshot the mark, and are now way out of step with public sentiment, as well as research about what actually works."...

Gelb said he believes Biden understands that there are social inequalities but does not fully grasp the extent to which the system itself is the root of the problem.  "My sense is that he understands that the criminal justice system is deeply flawed and needs to be fixed, but that he sees the system as a source of solutions, not a fundamental cause of the problems,” he said.  “And that means a balanced strengthening of the systems of enforcement, and prevention, and treatment, and corrections, and the courts."

A few of many prior related posts:

November 27, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (1)

Thankful the federal prison population is at lowest level in two decades

4o1xpnI am always thankful to have a good reason to express thanks, and this holiday period seems like a fitting time to be thankful about the federal prison population declining to modern lows.  Of course, it is sad that a global pandemic in part accounts for recent declines, but the COVID era was an accerant that continued positive trends which began after the federal prison population hit historic highs in 2013.

In 2013, the federal prison population reach a peak of around 220,000 total prisoners.  As we close out 2020, the latest BOP numbers at this webpage report "Total Federal Inmates" at only 154,125.  A 30% decline in the federal prison poplation in less than a decade strikes me as something to be thankful for, and the last time the federal prison population was this low was way back in the year 2000.  (That said, any celebration of positive federal carceral trends should be tempered the fact that BOP still reports that more than 30,000 federal prisoners are over age 50, and that nearly 50% of persons in federal prison are servng time for drug offenses despite widespread acknowledgement of the many failings of the war on drugs.)

The latest federal prison population numbers represents a small population decline from the numbers noted in this post last month, which suggests that there may still be small continued COVID-era federal prison population declines.  As noted in this post last month, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.  I suspect the pace of federal sentencings increased in the summer and fall, but the latest surge of COVID cases might yet again impact federal criminal case processing.  

A few of many prior related posts:

November 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Wednesday, November 25, 2020

Prez Trump grants pardon to Michael Flynn ... are a lot more to come?

As reported here by NPR, "President Trump has pardoned his first national security adviser, Michael Flynn, who spent years enmeshed in an often bizarre legal war with the government that sprang from the Russia investigation."  Here is more about an unsuprising act of clemency:

Trump announced the news on Twitter as Americans prepared to observe the Thanksgiving holiday this week.

The pardon brings an end to a long-running legal odyssey for Flynn, who was the only member of the Trump administration to be charged as part of special counsel Robert Mueller's Russia investigation.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and then cooperated extensively with prosecutors. But he ultimately reversed course and accused the government of trying to frame him. Flynn went to so far as to withdraw his first plea of guilty and substitute a second plea of not guilty, even though he'd acknowledged the underlying conduct that was against the law and been close to receiving a sentence.

The pardon drew condemnations from critics who've said Trump's actions to help his friends interfere with the justice system. House Intelligence Committee Chairman Adam Schiff, D-Calif., for example, who helped prosecute Trump at his impeachment, called the president's actions obviously corrupt.

Flynn, meanwhile, reacted on Twitter with a Bible verse alluding to a holy rescue.

Trump's action on Wednesday may open the door to possible clemency for other former Trump advisers who were indicted as part of the Russia investigation, including former campaign chairman Paul Manafort.

Meanwhile, this New York Times article, headlined "White House Weighs Pardon Blitz Before Trump’s Exit," highlights that I might have a lot of Trumpian clemency action to blog about in the coming weeks.  Here is how the piece gets started and some additional excerpts:

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

Alan Dershowitz, the law professor who represented Mr. Trump during his impeachment trial, is considering seeking clemency for two of his clients — a New Jersey man serving more than 20 years for defrauding investors, and a billionaire businessman convicted in what’s been called “one of North Carolina’s worst government corruption scandals.” Mr. Dershowitz said he recently discussed the pardon process with the White House.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said. Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

“Lists of people are being circulated,” said Brandon Sample, a Vermont lawyer who specializes in presidential pardons and has submitted several names of people to be considered. Among them is Russell Bradley Marks, 57, who has been imprisoned after pleading guilty in 1992 on a cocaine-related conviction for which he was given a mandatory life sentence....

Lawyers say the White House is also focused on ways to use presidential clemency powers to further burnish Mr. Trump’s role in what is considered the most consequential criminal justice legislation in a generation, which reduced sentences for nonviolent offenders. A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue....

The planned clemency initiative, and the lobbying that has unfolded around it, has been hindered in some ways in recent weeks by Mr. Trump’s refusal to formally concede his loss to President-elect Joseph R. Biden Jr.

Potential pardon seekers and their representatives said in interviews that they were waiting to escalate their appeals until Mr. Trump conceded, or at least signaled that he had started to come to grips with the looming end of his presidency. Appealing for clemency before then, people involved warn, risks backfiring, because it could be seen as acknowledging a defeat that Mr. Trump has thus far refused to accept....

The effort to create a White House commutation program separate from the formal Justice Department office started last year after the 2018 passage of the First Step Act, which expanded an early release program and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. There are at least 13,700 people who have formally applied to the Justice Department for pardons that are listed as “pending.”

Representatives of inmates seeking sentence reductions have separately been sending the White House lists of names, typically focusing on people who received unusually long sentences for nonviolent crimes after declining to accept a plea agreement and others serving long sentences because of mandatory guidelines. “Each of these are sad, sad situations,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. “They show massive injustice and over- sentencing, and we hope he will act on them.”

November 25, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Here's One Thing Republicans and Democrats Agree on: Criminal Justice Reform"

The title of this post is one headline that I have seen for this new New York Times article (which echoes some themes I have stressed in a few posts here and here from election week). I recommend the article in full, and here are some excerpts:

In a video presenting his closing argument for maintaining Republican dominance of the Senate, the majority leader, Mitch McConnell of Kentucky, chose three issues — tax cuts, judicial appointments and criminal justice reform.

Mr. McConnell had resisted bringing the First Step Act, which expanded release opportunities for federal prisoners, to the floor under former President Barack Obama and did so during the Trump administration only under extreme pressure.  Its passage firmly established the allure of reform and is now widely cited as President Trump’s most significant bipartisan achievement....

[C]riminal justice reform offers something for just about everyone: social justice crusaders who point to yawning racial disparities, fiscal conservatives who decry the extravagant cost of incarceration, libertarians who think the government has criminalized too many aspects of life and Christian groups who see virtue in mercy and redemption.

At the federal level, both parties have proposed police accountability bills.  Senator Lindsey Graham, the Republican chairman of the Judiciary Committee, has recently signaled that he is open to reinstating parole for federal prisoners, which was eliminated during the tough-on-crime 1980s.  President-elect Joseph R. Biden Jr. has promised to reduce incarceration and supports abolishing mandatory minimum sentences and expanding mental health and drug treatment.

Relatively few voters ranked the criminal justice system at the top of their list of concerns, even after the killing of George Floyd in May thrust policing into the national spotlight.  But patient work by advocates, buy-in from conservative groups and the United States’s position as a global leader in incarceration have gradually spread the message that the system is broken, and made fixing it a cause with broad appeal. 

A wide array of criminal justice measures did well on the ballot, including increasing police oversight, legalizing drugs and restoring voting rights to those with felony records.

Fewer Americans than ever believe the system is “not tough enough,” according to a recent Gallup poll.  And in a sign of how much attitudes have changed since lawmakers boasted of locking people up and throwing away the key, Mr. Trump and Mr. Biden sparred over who had let more people out of prison.

The fact that it is a niche issue may serve to increase its chances of breaking partisan gridlock....

The pandemic, in which prisons and jails have become some of the biggest viral hot spots, presents an opportunity for advocates, who hope that Covid-19 relief measures like expanded medical release and early parole will outlast the spread of the coronavirus.

Pandemic-related budget shortfalls represent another opportunity. The Texas Criminal Justice Coalition, a progressive group, has called its legislative agenda for next year “Spend Your Values, Cut Your Losses,” arguing that measures like lowering drug penalties and making it harder to revoke probation and parole will save millions of dollars....

Robert Blizzard, a Republican pollster, said that criminal justice reform proposals garner support across the board, and help Republicans reach outside their base to groups like suburban women and people of color.

I am pleased to see this article and like many of its themes.  But amidst generations of mass incarceration and criminalization, data showing a third of US adults has a criminal record, and nationwide 2020 protests focused on racial (in)justice, I am still struck and troubled by the blasé statement that criminal justice reform is just a "niche issue."  (Since I read nine of the first ten Amendments to the US Constitution as setting forth formal or informal safeguards against extreme uses of the police power, I suppose I should be grateful the Framers did not view as "niche" the operation of American criminal justice systems.)

This NY Times piece, coming right after a big transition election, leads me to recall this online article I penned for the Harvard Law & Policy Review almost exactly 12 years ago under the title "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities."  Among other points, I urged progressives to seek to forge bipartisan coalitions for reform in this way:

[P]rogressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration....  If truly committed to their espoused principles of human liberty and small government, modern conservatives and libertarians should be willing and eager to join a serious campaign committed to reversing the incarceration explosion.  Progressives, rather than categorically resisting calls for smaller government, should encourage modern conservatives and libertarians to turn their concerns and energies toward improving America’s criminal justice systems.  Areas where harsh criminal laws appear to be driven by government efforts to hyper-regulate often intangible harms, such as extreme mandatory sentencing statutes related to drug crimes and gun possession, seem especially likely settings for a convergence of views and new alliances for advocacy efforts.  Specific, issue-based advocacy may allow progressives to forge coalitions with unexpected allies in order to work against some of the most unjust modern sentencing laws and policies.

Though a lot of progress has been made in since I wrote these words back in 2008, there is still a whole lot more that needs to get done. I hope political leaders at the federal, state and local levels will continue to keep working together (on this "niche" issue) to continue to move forward aggressively and effectively.

November 25, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, November 24, 2020

Second Circuit panel affirms 55-year federalsentence for 15-year-old while lamenting the "unavailability of parole"

A helpful reader made sure I did not miss the interesting opinion by the Second Circtuit today in US v Portillo, No. 19-2158 (2d Cir. Nov. 24, 2020) (available here).  Here is how the opinion gets started:

This appeal, challenging as unreasonably severe a sentence of fifty-five years imposed on a defendant who was fifteen years old at the time of the offense, presents the legal issue of the lawfulness of the sentence and also serves as a classic illustration of the unfortunate consequences of the congressional decision to eliminate parole in the Sentencing Reform Act of 1984.  Defendant-Appellant Josue Portillo appeals from the July 12, 2019, judgment entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, then-District Judge).  Pursuant to a guilty plea, Portillo was convicted of participating in a pattern of racketeering activity evidenced by his role in the murder of four teenagers, in violation of 18 U.S.C. § 1962(c).

On appeal, Portillo makes two arguments.  First, he urges an extension of the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that would require the District Court at sentencing in this case to consider the factors that Miller ruled must be considered in sentencing a juvenile to life imprisonment without the possibility of parole.  Second, he contends that his sentence was substantively “unreasonable,” the standard the Supreme Court instructed federal appellate courts to use on review of sentences, see United States v. Booker, 543 U.S. 220, 260-64 (2005), after the Court determined in 2005 that the federal Sentencing Guidelines, which had become effective in 1987, were no longer mandatory, see id. at 245, 259-60.

We conclude that the challenged sentence was lawfully imposed and therefore affirm the judgment.  We also add some observations on the relationship between this sentence and the unavailability of parole.

November 24, 2020 in Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (1)

Two different takes on Prez Trump's clemency record as his term nears conclusion

The silly Presidential turkey pardon tradition has prompted two new pieces about Prez Donald Trump's clemency record that strike markedly different tones.  Here are the headlines, links, and excerpts:

By John Gramlich and Kristen Bialik at Pew Research Center, "So far, Trump has granted clemency less frequently than any president in modern history":

As he enters the home stretch of his White House tenure, Donald Trump has used his clemency power less often than any president in modern history, according to data from the U.S. Department of Justice.  Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations.  That’s the lowest total of any president since at least William McKinley, who served at the turn of the 20th century.  Obama, by comparison, granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations.  The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

By Steven Nelson at the New York Post, "Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons":

People close to the White House believe President Trump may pardon humans in addition to turkeys this holiday season — with one advocate saying they expect Trump to close out his term with a bang as the “most merciful” president in history.  Trump will “pardon” gobblers named Corn and Cob in an annual tradition at the White House on Tuesday, but in a potential twist, allies and reform advocates are anticipating more serious reprieves in the coming weeks.

“President Trump has moved mountains since taking office and I’m certain he’s not done yet,” said Amy Povah, a clemency advocate and founder of the CAN-DO Foundation.  “I would not be surprised if he goes down in history as the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era of the late ’80s and ’90s that is responsible for sending many good people to prison for life, including life for pot.”

Presidents generally are more generous with clemency — including pardons and prison commutations — toward the end of their terms, contributing to the anticipation.

Though I am always eager to complain about Presidents failing to use their clemency powers more, I think the Pew piece is a bit unfair because it compares Prez Trump's record in his first term to mostly two-term Presidents.  In fact, Prez Trump has already granted more clemencies his his first term than did Prez Obama or Prez George W. Bush at this point in their first terms.  Moreover, as the NY Post article suggests, there are reasons to expect Prez Trump will grant some more clemencies — perhaps a lot more clemencies — over his last few months in office.

I sincerely hope Amy Povah and others are effective in encouraging Prez Trump to become "the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era."  But I cannot help but wonder how Prez Trump's own vision of his political future and legacy might impact his clemency work in the months ahead.  Any attempt at a self-pardon or granting clemencies to lots of family members or close advisors could be viewed as a tacit admission of serious wrong-doing and thus could, perhaps, hurt the Trump political brand.  But since I have never been quite able to figure out the Trump political brand, I will close here by highlighting some notable cases mentioned in the lengthy NY Post piece:

Some clemency aspirants were jailed-for-life for marijuana dealing or importing crimes under President-elect Joe Biden’s 1994 crime law, giving Trump an opportunity to thumb his nose at his 2020 rival....  Allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.

Paraplegic Michael Pelletier, 64, has a life sentence for smuggling marijuana from Canada into Maine in the early 2000s. Both jurisdictions later legalized the drug and he ruefully notes that pot shops have been deemed “essential” during COVID-19 lockdowns....  Another clemency seeker, Corvain Cooper, 41, has a life sentence for his role transporting marijuana from California to North Carolina, also under the three-strike provision of Biden’s law....

Many prisoners pushed by clemency advocates aren’t public figures and were sentenced for drugs.  David Barren, 55, whose drug-dealing life sentence was reduced to 30 years by former President Barack Obama, told The Post he hopes to be free while his parents, in their 80s, are still alive.  Rufus Rochell, 69, who is under home arrest as he completes a 40-year drug sentence, said his family is grateful that his brother Richard Williams, convicted in the same drug conspiracy, was released from prison this year under Trump’s reform law, but that he would be grateful to have his record cleared.

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018 when Trump freed Alice Johnson from a life sentence at the request of Kim Kardashian.  Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate in Cleveland.  Trump often speaks proudly of freeing Johnson and turned to her for recommendations.  During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election.

The White House did not respond to a request for comment.

November 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Fake News, Real Policy: Combatting Fear And Misinformation In Criminal Justice"

The title of this post is the title of this interesting new R Street policy study authored by Emily Mooney and Casey Witte. Here is part of its introduction:

Currently, opportunities for and examples of misinformation and fear-mongering within the criminal justice system are bountiful.  The United States is facing a global health crisis and struggling to productively address long-standing issues of racial injustice.  In the first half of 2020, our nation continued to see property crime and most forms of violent crime decrease, while murder and nonnegligent manslaughter rates (although historically still low) rose by nearly 15 percent when compared to the first half of 2019, while aggravated assaults rose by about 5 percent. Although still one of the most crime-free times in our nation’s history, many have been quick to blame this increase on policy changes, such early prison releases due to the COVID-19 pandemic, and civil unrest.9\ Yet, as experts have pointed out, the intersecting forces of a global pandemic, economic recession, racial unrest and nationwide protests mean it will take more time, data and intentional analysis to decipher the causal mechanisms of any current crime trends.

In both the past and present, it has been easy for criminal justice policy to be driven by fear and emotional policymaking rather than a sober assessment of the facts. This occurs for somewhat natural reasons, as the consequences of criminal justice policy failures can appear more immediate and visceral: the potential for the death of a loved one, lost property or abuse are far more tangible concepts than cybersecurity threats or green energy.  This is likely, at least in part, due to human memory — research shows experiences and events tied to strong emotions are more memorable than less dramatic or weighted incidents.  Further, policy success is often measured by recidivism — a zero-sum measure of an individual’s return to crime — rather than other metrics which show incremental progress.  On top of this, the media, more often than not, focuses on policy failures rather than policy successes.

Yet, fear-based and emotionally-driven policy debates and policymaking are a disservice to the American public.  Policymakers and the public may incorrectly deduce or be blind to the collateral consequences of their policies and are prone to letting biases impact their decision-making.  As a result, the same problems remain, which cost life, property and liberty in the process.

This paper seeks to address this trend by first examining the relationships between fear, misinformation and policy and then providing illustrative examples of modern criminal justice myths alongside the evidence stacked against them.  It will then conclude with a short list of policy solutions to combat misinformation and fear-mongering in criminal justice policy.

November 24, 2020 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Great discussions of progressive prosecution in latest issue of the Journal of Criminal Law and Criminology

Anyone and everyone intrigued by the progressive prosecutor movement should be sure to check out Volume 110, Issue 4 of the Journal of Criminal Law and Criminology.  These great-looking articles are in this great-looking issue:

November 24, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

New Sentencing Project fact sheet on "Incarcerated Women and Girls"

The Sentencing Project has released today this notable new fact sheet titled "Incarcerated Women and Girls" which examines (pre-COVID) female incarceration trends. I recommend the full piece (which includes lots of informative graphics), and here are excerpts:

Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system.  This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women.  The female incarcerated population stands over seven times higher than in 1980. More than 60% of women in state prisons have a child under the age of 18.

Between 1980 and 2019, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 222,455 in 2019....

Women in state prisons are more likely than men to be incarcerated for a drug or property offense.  Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 24% of incarcerated women have been convicted of a property crime, compared to 16% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2018.

November 24, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, November 23, 2020

Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President

Since the 2020 federal election results became clear a few weeks ago, I have already blogged a bit (here and here) about some of the the notable criminal justice reform recommendations [available here pp. 56-62] from the Biden-Sanders Unity Task Force (first discussed here).  With Prez-elect Biden now starting to announce his planned cabinet appointments, I have decided it is now time to start a new series of posts that spotlight and amplify some  recommendations from the Criminal Justice Unity Task Force that ought to get sentencing fans especially excited. 

I have never been quite sure if Prez-elect Joe Biden views the recommendations that emerged from the Biden-Sanders Unity Task Force as part of his official avowed agenda.  But I am quite sure that I am going to be eager to persistently judge the work of the Biden Adminstraton against the backdrop of what the Criminal Justice Unity Task Force (CJUTF) recommended.  And because soooooo much is recommended by the CJUTF, everyone should be prepared for a lot of coming posts in this series.

With that set up, let me start this series by spotlighting arguably the most exciting and challenging of all the CJUTF recommendations:

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

This recommendation is so exciting and challenging because it essentialy calls for a top-to-bottom "comprehensive" review of the federal sentencing system.  It is also exciting and challenging because it presupposes a functioning and functional US Sentencing Commission, which has not existed for the better part of two years because of USSC vacancies. 

I have flagged this issue in this first post in this series not only because it is arguably the most far-reaching of the CJUTF recommendations, but also because the incoming Biden Administration needs to be working now on appointments to the US Sentencing Commission if it really wants to hit the ground running.  Sadly, there is a long history of US Sentencing Commission not getting the attention it deserves and that it critically needs if and whenever federal policymakers are seriously committed to federal sentencing reform.  At a time when there is finally sustained bipartisan commitment to continued federal sentencing reforms, the new President and his team should be trying to get all the key players on the field ASAP.  All the other proposed CJUTF sentencing reforms that I will discuss in coming posts can and should be more effectively advanced if and when the Biden Administration does this critical initital appointing work.  

Prior related posts:

November 23, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Latest Gallup poll indicates "U.S. Support for Death Penalty Holds Above Majority Level"

Yf68dytyzk6h07t16w_kyqThe quoted portion of the title of this post is the headline of this Gallup report from a few days ago,  Here are excerpts from the report:

Americans' support for the death penalty continues to be lower than at any point in nearly five decades.  For a fourth consecutive year, fewer than six in 10 Americans (55%) are in favor of the death penalty for convicted murderers.  Death penalty support has not been lower since 1972, when 50% were in favor.

Gallup has asked Americans whether they are "in favor of the death penalty for a person convicted of murder" since 1936, when 58% said they were. In all but one survey -- in 1966 -- more Americans have been in favor than opposed.  The 1960s and early 1970s brought many legal challenges to the death penalty, culminating in a 1972 U.S. Supreme Court ruling that invalidated state death penalty statutes.  After the high court upheld revised state death penalty laws in 1976, support for capital punishment grew, peaking at 80% in 1994, a time of heightened public concern about crime.

This year's results are based on a Sept. 30-Oct. 15 survey.  Gallup occasionally asks another question to gauge death penalty support, with respondents indicating whether they believe the better punishment for murder is the death penalty or life imprisonment with no possibility of parole.  In the most recent update, from 2019, Americans favored life imprisonment over the death penalty by 60% to 36%, a dramatic shift from prior years.

Many Americans are thus conflicted on the death penalty.  The two Gallup trend questions indicate that about one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers....

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016.  Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points).  Now, 39% of Democrats and 54% of independents are in favor of the death penalty.  Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010....

Changes in the U.S. population appear to be a factor in declining death penalty support in recent years. Groups that are constituting a greater share of the U.S. adult population over time -- including millennials and Generation Z, non-White adults and college graduates -- all show below-average support for the death penalty.

Over the past four years, an average of 45% of those in Generation Z (those born after 1996) have favored the death penalty, as have 51% of millennials (those born between 1980 and 1996).  That compares with 57% of those in Generation X, 59% of baby boomers and 62% of those born before 1946.

Forty-six percent of non-White Americans, versus 61% of Non-Hispanic White Americans, support the death penalty. Among college graduates, 46% favor the death penalty, compared with 60% of those without a college degree.

November 23, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Some Modest Proposals for a Progressive Prosecutor"

the title of this post is the title of this new piece now available via SSRN authored by Steven Zeidman. Here is its abstract:

The progressive prosecutor movement has spawned a number of races for District Attorney where candidates fight to claim the mantle of most progressive potential prosecutor. However, the promises made by self-described forward thinking, if not exactly radical, prosecutor candidates, as well as those made by newly elected District Attorneys, are at best the kind of reformist reforms criticized by many as having little impact on entrenched systems of oppression and as ultimately expanding their reach.

It is incumbent on those looking for fundamental change in prosecutorial practices to try and assess whether any candidates are willing to take bolder steps than simply promising to prosecute more fairly and compassionately.  Instead, the inquiry must be whether the candidate is willing to give up any aspects of the awesome power and the vast resources bestowed upon the office, particularly when it comes to the trial process.

November 23, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Highlighting the need for second-chance sentencing reforms

This new Law360 piece, headlined "2nd Look Law Needed To Fix Broken Criminal Justice System," gives attention to a recent ABA panel discussing second-look sentencing reforms.  Here are excerpts:

To address the mass incarceration that has resulted from older policing practices, which has disproportionately impacted Black men, federal and local governments should adopt so-called second look laws that allow incarcerated individuals to petition judges to reevaluate their sentences after a certain period of time, experts said Thursday at the American Bar Association's annual fall criminal justice conference.

Mary Price, general counsel at Families Against Mandatory Minimums, or FAMM, a nonprofit advocacy organization seeking to end mandatory sentencing, said that our criminal justice system has been addicted to putting people in prison to manage problems leading to mass incarceration, and this needs to stop.  "I don't think we are going to be able to achieve justice in the system until we not only reform the police and practices, but we also ensure that the legacy of older policing — in the form of people serving sentences that are way out of proportion with their conduct, and also people who are thrown away because the nature of the offense or the addiction — is also addressed," Price said.

Last year, Sen. Cory Booker, D-N.J., along with Rep. Karen Bass, D-Calif., introduced the Second Look Act of 2019 that proposes allowing any incarcerated individual who has served at least 10 years to request that their sentence be reevaluated to determine if they are eligible for early release or a sentence reduction, but the bill hasn't passed in the U.S. Senate or House of Representatives yet.

David Singleton, the executive director of the Ohio Justice and Policy Center, said during a panel titled Second Look & Incarceration with Price at the ABA conference that a challenge to getting a federal second look law passed is that lawmakers want carveouts that would exempt certain crimes, such as murder or sex offenses, from the law. Singleton said carveouts defeat the purpose of the law because they leave people behind. "We have to move away from these carveouts," Singleton said.  "If we accept carveouts, the advocates of change, we are throwing people under the bus."...

Booker reinforced the panelists' words during his keynote speech at the conference on Friday, saying that criminal justice reform needs to be throughout the country's entire justice system.  "We must commit ourselves to continuing the work of reforming a savagely broken system and that means everything — our policing to what happens with sentencing to what happens inside our prisons to what happens upon release," Booker said.

November 23, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 22, 2020

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

November 22, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze"

The titl of this post is the title of this notable new article available via SSRN and authored by Michael Sousa. Here is its abstract:

Drug treatment courts represent a paradigm shift in the American criminal justice system.  By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century.  The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society.  Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide.  My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

November 22, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, November 21, 2020

"What the data says (and doesn’t say) about crime in the United States"

The title of this post is the title of this effective short FactTank report about US crime rates authored byJohn Gramlich for the Pew Research Center. I recommend the full piece, which includes lost of links, and here are some exerpts:

As Trump’s presidency draws to a close, here is a look at what we know — and don’t know — about crime in the U.S., based on a Pew Research Center analysis of data from the federal government and other sources...

Property crime in the U.S. is much more common than violent crime.  In 2019, the FBI reported a total of 2,109.9 property crimes per 100,000 people, compared with 379.4 violent crimes per 100,000 people.  By far the most common form of property crime in 2019 was larceny/theft, followed by burglary and motor vehicle theft. Among violent crimes, aggravated assault was the most common offense, followed by robbery, rape, and murder/non-negligent manslaughter....

Both the FBI and BJS data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation....

Americans tend to believe crime is up, even when the data shows it is down.  In 20 of 24 Gallup surveys conducted since 1993, at least 60% of U.S. adults have said there is more crime nationally than there was the year before, despite the generally downward trend in national violent and property crime rates during most of that period....  This year, the gap between the share of Americans who say crime is up nationally and the share who say it is up locally (78% vs. 38%) is the widest Gallup has ever recorded....

There are big differences in violent and property crime rates from state to state and city to city.  In 2019, there were more than 800 violent crimes per 100,000 residents in Alaska and New Mexico, compared with fewer than 200 per 100,000 people in Maine and New Hampshire, according to the FBI.

Even in similarly sized cities within the same state, crime rates can vary widely. Oakland and Long Beach, California, had comparable populations in 2019 (434,036 vs. 467,974), but Oakland’s violent crime rate was more than double the rate in Long Beach. The FBI notes that various factors might influence an area’s crime rate, including its population density and economic conditions....

Most violent and property crimes in the U.S. are not reported to police, and most of the crimes that are reported are not solved.

Fewer than half of crimes in the U.S. are reported, and fewer than half of reported crimes are solved.  In its annual survey, BJS asks crime victims whether they reported their crime to police or not.  In 2019, only 40.9% of violent crimes and 32.5% of household property crimes were reported to authorities.  BJS notes that there are a variety of reasons why crime might not be reported, including fear of reprisal or “getting the offender in trouble,” a feeling that police “would not or could not do anything to help,” or a belief that the crime is “a personal issue or too trivial to report.”

Most of the crimes that are reported to police, meanwhile, are not solved, at least based on an FBI measure known as the clearance rate.  That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution, or due to “exceptional” circumstances such as the death of a suspect or a victim’s refusal to cooperate with a prosecution.  In 2019, police nationwide cleared 45.5% of violent crimes that were reported to them and 17.2% of the property crimes that came to their attention.

Both the percentage of crimes that are reported to police and the percentage that are solved have remained relatively stable for decades.... The most frequently solved violent crime tends to be homicide.  Police cleared around six-in-ten murders and non-negligent manslaughters (61.4%) last year.  The clearance rate was lower for aggravated assault (52.3%), rape (32.9%) and robbery (30.5%). When it comes to property crime, law enforcement agencies cleared 18.4% of larcenies/thefts, 14.1% of burglaries and 13.8% of motor vehicle thefts.

November 21, 2020 in National and State Crime Data | Permalink | Comments (0)

Terrific coverage at CCRC as "Marijuana expungement accelerates across the country"

Long-time readers here and at my other blog know I have long been interested in how marijuana reform can advance criminal justice reform.  My 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," called for much greater efforts to ensure marijuana reforms advance criminal record expungement efforts.  Happily, my 2018 article now already feels a bit dated because there has recently been a much greater emphasis on record relief in many marijuana reforms proposed and passed over the last couple of years. 

These recent realities have been effectively documented at the Collateral Consequences Resource Center.  CCRC Deputy Director David Schlussel first highlighted these developments in March 2020, via this posting and resource under the title "Legalizing marijuana and expunging records across the country."  That detailed posting began this way:  "As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda."  Wonderfully, this new follow-up posting provides the lastest detailed post-election accounting and gets started this way:

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions.  During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March.  Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief.  Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

November 21, 2020 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision | Permalink | Comments (0)

Friday, November 20, 2020

US Department of Justice sets three more execution dates

In this July post I wondered aloud "How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?".  My main point in that post was that, after the completion of an initial three federal executions that month thanks to SCOTUS lifting lower court stays, it seemed that AG Barr would likely be able to have completed as many executions he decided to set.  For anyone who might have thought AG Barr would be content with ten executions in 2020 (eight already completed and two more planned), this new DOJ press reveals details he is not done.  This release is titled  "Executions Scheduled for Inmates Convicted of Brutal Murders Many Years Ago," and here are the essentials:

Attorney General William P. Barr today directed the Federal Bureau of Prisons to schedule the executions of three federal-death row inmates sentenced to death for staggeringly brutal murders, including the murder of a child and, with respect to two inmates, the murder of multiple victims.

  • Alfred Bourgeois abused, tortured, and beat to death his young daughter....  Bourgeois is scheduled to be executed by lethal injection on Dec. 11, 2020, at the Federal Correctional Complex, Terre Haute, Indiana.
  • Cory Johnson murdered seven people — Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles, and Curtis Thorne — in furtherance of his drug-trafficking activities....  Johnson is scheduled to be executed by lethal injection on Jan. 14, 2021, at the Federal Correctional Complex, Terre Haute, Indiana.
  • Dustin John Higgs kidnapped and murdered three women — Tamika Black, 19; Tanji Jackson, 21; and Mishann Chinn, 23....  Higgs is scheduled to be executed on Jan. 15, 2021.

November 20, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

November 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert on two new Fourth Amendment cases

The US Supreme Court released this brief order list this afternoon granting certiorari in these two new cases with these questions presented:

19-1414 UNITED STATES V. COOLEY, JOSHUA J.

Cert petition question presented: "Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law."

20-157 CANIGLIA, EDWARD A. V. STROM, ROBERT F., ET AL.

Cert petition question presented: "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."

November 20, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Is Sally Yates on track to be the next US Attorney General?

E204c9e0-0c25-11eb-a040-3d8028d863aa_1200_630The question in the title of this post is prompted by this new Reuters piece headlined "Biden's possible attorney general pick has moderate track record: progressive critics."  Here are excerpts:

President-elect Joe Biden has pledged to end the federal death penalty and eliminate mandatory minimum sentences, but some progressives say a potential pick for attorney general to carry out those reforms may not be the one to enact bold changes.

Sally Yates, 60, is a leading candidate for the job, according to sources.  The Atlanta native is perhaps best known for being fired from her position as acting attorney general by Republican President Donald Trump in his first month in office when she refused to enforce his first attempt at banning travelers from Muslim-majority nations.

Her history at the Department of Justice (DOJ) — where Democratic President Barack Obama appointed her as deputy attorney general in 2015, and before that as Atlanta’s top federal prosecutor for about five years — make the adviser to the Biden transition team a safe pick for a role subject to confirmation by the U.S. Senate, which may still be under Republican control next year.

Asked for comment, a Yates spokeswoman provided a lengthy list of opinion articles, testimony and other records she said demonstrate Yates’ strong commitment to criminal justice reform.  A Biden transition team spokesman did not respond to a request for comment.

Yates has expressed a measured approach on some criminal justice reforms, including previously voicing some support for the mandatory minimum sentences Biden wants to end — a position some progressives worry may not go far enough at a time of reckoning for the criminal justice system.  “She has done courageous things, but she is a career prosecutor,” said Rachel Barkow, a New York University law professor who previously served on the U.S. Sentencing Commission, which sets federal sentencing guidelines.  “The question will be, if Sally Yates comes in a second time, does she do a better job reading the moment or is she still coming with that DOJ insider lens?”...

Yates, during her 2015 confirmation hearing for deputy attorney general, called mandatory minimum sentences “an important tool for prosecutors,” which could nevertheless be used more judiciously due to the “fiscal reality” facing U.S. prisons.  While she was U.S. attorney in Atlanta, her office also sought the death penalty in some cases, and she testified on the Justice Department’s behalf to urge the U.S. Sentencing Commission to narrowly limit who could qualify to apply retroactively for a drug sentence reduction.

She was also involved in a controversy surrounding a 2014 clemency project, after Pardon Attorney Deborah Leff resigned in protest due to a backlog of 1,000 recommendations sitting in Yates’ office, 100 of which were urging clemency be granted.  In her January 2016 resignation letter, Leff said Yates had blocked her access to the White House, including on cases where Yates had reversed Leff’s clemency determinations.  Yates’ defenders say she was passionate about clemency, and personally reviewed every petition herself.

Some former colleagues say Yates deserves credit for important work that began during the Obama administration, much of which has since largely been undone during Trump’s term.  Yates spearheaded efforts to scale back the federal government’s use of private prisons, revamped the Bureau of Prisons’ education program to better prepare inmates for release and urged limits on solitary confinement.  She also persuaded Obama-era Attorney General Eric Holder to expand on his new policy scaling back the use of mandatory minimums and later publicly rebuked Trump’s first attorney general, Jeff Sessions, after he reversed these policies in 2017.

“Somebody like Sally is very attuned to what has been happening in the country after George Floyd’s murder,” said Vanita Gupta, who headed the DOJ’s civil rights division during Yates’ tenure and now heads the Leadership Conference on Civil & Human rights.  “She is very personally committed to civil rights and criminal justice reform, and I would fully expect that commitment would actually only deepen.”

I sense that Yates' long history as a federal prosecutor and her moderate approach to many reform issues leads some progressives to be rooting against her for the Attorney General position in a Biden Administration.  But I am inclined to view Yates' past criminal justice record somewhat like I view VP-elect Harris' record: I sense they have always been highly attuned to, and quite effective within, the felt legal and political needs of the time, which would suggest at least some ability to step up to the needs of our current criminal-justice-reform-focused times.

I am eager to note here that Sally Yates has recently been actively involved in the Council of Criminal Justice, serving as Co-Chair of the CCJ Board of Trustees and as a member of its federal priorities task force.  As highlighted in this post from May, I was especially impressed with the agenda for reform that the CCJ federal priorities task force produced.   This impressive report, titled "Next Steps: An Agenda for Federal Action on Safety and Justice," included 15 thoughtful recommendations, and I would be thrilled to have a new Attorney General committed to making these particular proposals a reality ASAP:

If the next Attorney General would be able to get even half of these priorities completed in the coming years, that would be quite a set of accomplishments.

November 20, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

November 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, November 19, 2020

"How Governors Can Use Categorical Clemency as a Corrective Tool: Lessons from the States"

The title of this post is the title of this interesting new report from the Urban Institue.  Here is its executive summary:

Governors in most states have executive clemency authority that allows them to change the terms of someone’s criminal justice system involvement, including by issuing pardons or by granting commutations to adjust the sentences of people in prison.  Though many clemency deliberations are independent case-by-case assessments, in some cases, governors can also extend clemency eligibility categorically to groups of people in prison to mitigate structural issues or accomplish larger reform goals.  In this report, we provide a high-level overview of state executive categorical clemency and offer examples of how state governors have used this strategy as a corrective tool to address problems in the criminal justice system.

November 19, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Further reflections on reform after "war on drugs" loses big in 2020 election

Rightly so, folks are still chatting about the meaning and impact of the election results ushering significant drug reforms.  Here are some of many pieces covering this interesting ground:

November 19, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Marijuana Legalization in the States | Permalink | Comments (0)

"'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing"

the title of this post is the title of this new paper authored by Michael Perlin and Alison Lynch now available via SSRN. Here is its abstract:

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases.  This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”).  The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts.  If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those — be they elected politicians, editorial writers and commentators in the conservative media, or judges — who urge retributive and punitive sentences for adolescents and children.

In this paper, we will first give a brief overview about the current neuroscientific findings about juvenile brain development in the context of criminal behavior, and then discuss the current sentencing standards and regulations that are in place.  Then, we will discuss the impact of therapeutic jurisprudence as a framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate trauma.  Finally, we will offer recommendations for how experts can work with attorneys who are presenting sentencing arguments, in order to make the most comprehensive, scientifically persuasive case for leniency in juvenile sentencing.

November 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, November 18, 2020

"The Impact of Legalized Abortion on Crime over the Last Two Decades"

The title of this post is the title of this notable new work from John Donohue and Steven Levitt published in the American Law and Economics Review.  Here is the abstract:

Donohue and Levitt (2001) presented evidence that the legalization of abortion in the early 1970s played an important role in the crime drop of the 1990s.  That paper concluded with a strong out-of-sample prediction regarding the next two decades: “When a steady state is reached roughly twenty years from now, the impact of abortion will be roughly twice as great as the impact felt so far.  Our results suggest that all else equal, legalized abortion will account for persistent declines of 1% a year in crime over the next two decades.” 

Estimating parallel specifications to the original paper, but using the seventeen years of data generated after that paper was written, we find strong support for the prediction and the broad hypothesis, while illuminating some previously unrecognized patterns of crime and arrests.  We estimate that overall crime fell 17.5% from 1998 to 2014 due to legalized abortion — a decline of 1% per year.  From 1991 to 2014, the violent and property crime rates each fell by 50%.  Legalized abortion is estimated to have reduced violent crime by 47% and property crime by 33% over this period, and thus can explain most of the observed crime decline.

November 18, 2020 in National and State Crime Data | Permalink | Comments (0)

UC Law Review Online publishes symposium on "COVID-19 and Criminal Justice"

I was intribued to see this new University of Chicago Law Review Online symposium exploring the COVID pandemic's impact criminal justice.  Here are all the great-looking pieces:

Valena E. Beety & Brandon L. Garrett, COVID-19 and Criminal Justice (series introduction)

Sharon Dolovich, Mass Incarceration, Meet COVID-19

Maybell Romero, Law Enforcement as Disease Vector

Valena E. Beety, Pre-Trial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests

Deniz Ariturk, William E. Crozier & Brandon L. Garrett, Virtual Criminal Courts

Pamela R. Metzger & Gregory J. Guggenmos, COVID-19 and the Ruralization of U.S. Criminal Court Systems

Barry Friedman & Robin Tholin, Policing the Pandemic

Jennifer D. Oliva, Policing Opioid Use Disorder in a Pandemic

November 18, 2020 in Impact of the coronavirus on criminal justice, Recommended reading | Permalink | Comments (0)

Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation

As reported in this Courthouse Legal News piece, headlined "Federal Executions on Track but DC Circuit Flags Legal Errors," two federal defendants scheduled to be executed in coming days and weeks got some cold comfort from the DC Circuit today:

Though it declined to block two federal executions, the first just over 24 hours away, the D.C. Circuit was critical Wednesday that seven lethal injections have been carried out in the last few months without medical prescriptions.

This year alone, President Donald Trump’s Justice Department has carried out more federal executions than the combined total of his predecessors from the last 57 years. That record has sat undisturbed so far against a litany of challenges to the new lethal-injection protocol unveiled last year by Attorney General William Barr after a 17-year hiatus on the death penalty at the federal level.

Inmates suffered their latest defeat Wednesday morning when the D.C. Circuit declined to stay the executions of Orlando Hall set for Thursday and Brandon Bernard on Dec. 10.

In a rare rebuke from the appeals court as to the government’s death-penalty practices, however, the court revived the inmates’ claims that the government must obtain a prescription before using the drug pentobarbital to kill prisoners....

[In] a September ruling ... U.S. District Judge Tanya S. Chutkan found that the Trump administration violated the law by carrying out death sentences with unprescribed pentobarbital, but that Supreme Court decisions foreclosed her from blocking the upcoming executions.

The Supreme Court cleared the way for the first federal execution to proceed this year, overturning a temporary ban that Chutkan had ordered. In her latest ruling, Chutkan concluded that “most of the evidence” brought by attorneys to show flash pulmonary edema grips an inmate while they are still awake was already reviewed by the justices and did not reach the high bar to grant injunctive relief.

But the 2-1 appeals panel ruled Wednesday that Chutkan “should have ordered the 2019 protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.” Though the court revived the inmates’ Eighth Amendment challenge, it affirmed “denial of a permanent injunction to remedy the FDCA violation.”

Jonathan S. Meltzer, an attorney for Hall, said they would ask the Supreme Court this afternoon to issue a stay. The Justice Department did not respond to whether it plans to bring its own challenge to the Wednesday ruling. Hall has requested to go to the execution chamber at 6 p.m. for his scheduled death on Thursday. He was convicted for the kidnapping, rape and murder of a 16-year-old girl in 1994.

Bernard, set to be executed next month, was sentenced to death for the killing of two youth ministers at Food Hood. One of his five co-defendants, Christopher Vialva, was the most recent federal prisoner to die by lethal injection, executed by the Trump administration in September.

Lisa Montgomery, bringing a separate lawsuit backed by the ACLU, is scheduled to die on Dec. 8 — two days before Bernard — and would be the first woman executed by the U.S. government since 1953.

The full split panel ruling from the D.C. Circuit is available at this link.

November 18, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

Prior posts on similar reasonableness ruling:

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

County in Washington State approves new diversion program focused on community restoration

This local article, headlined "King County Council OKs plan to let community groups decide some punishment -- not judges," reports on a notable new diversion program just approved in Seattle's county.  Here are the interesting details:

The King County Council on Tuesday voted Tuesday to approve funding for a groundbreaking criminal justice diversion program that will let community groups decide what punishment -- if any -- should be handed out for a select group of accused felons.

The county council voted 9-0 to approve a program known as Community Restorative Pathways, adding funding for it in the county's $12.59 million biennium budget. Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Suspects accused of violent crimes and crimes against persons would not be eligible for the diversion program, and if the offender fails to follow through with the community groups recommended punishment or accountability, the original criminal charges could still be pursued in court.

“We can send that person instead (of jail) to a community accountability group, who will define what they think accountability means,” said King County Prosecutor Dan Satterberg. It’s a new concept for King County Superior Courts and the King County Prosecutor’s Office, which has 7,000 cases waiting for disposition, double the amount in a normal year. Accountability would not include jail or even a conviction, said Satterberg, who declined to define what accountability means.

“That’s up to the community groups,” he said, adding that it would target 800 juveniles and 1,000 adults to start. “These are low-level felonies, property offenses, no domestic violence, no sexual assault cases (and) decisions you would make if you were in my shoes.”

The program is slated to begin in mid-2021 and be implemented no later than the start of 2022. The budget for the program is set at $6.2 million, money that would have gone to the King County Sheriff’s Office.

King County Executive Dow Constantine proposed the idea along with Satterberg. Constantine has pledged to phase out the King County Jail after the pandemic is over, what he described as a cost-cutting move. “Locking people up is very costly and it’s not affirmative for people's lives,” King County Councilmember and Budget Chairperson Jeanne Kohl-Welles told KOMO News just before the budget vote. “But we also have to make sure to protect the public, so this is hard, it’s not going to be easy."

November 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 17, 2020

"The Rule of Judicial Political Affiliation in Criminal Sentencing Outcomes"

The title of this post is the title of this new paper now available via SSRN authred by Wendy Calaway, Jennifer Kinsley and Taylor Wadian.  Here is its abstract:

Legislative efforts to bring consistency to criminal sentencing outcomes has been much discussed in academic literature and Congressional hearings alike.  Despite these efforts disparate sentencing outcomes persist.  Researchers have studied many variables seeking to understand these disparities but have been unable to form a consensus around the cause. Perhaps because of the lack of a firm understanding of the issue among researchers, legislative intervention at both the state and federal level has largely failed to address the issue of judicial characteristics that may drive sentencing disparities.  As a result, absent from the conversation on criminal sentencing reform is empirical and anecdotal evidence about how judges make determinations within the range of outcomes specified by the legislature.  New data on federal sentencing outcomes collected by Harvard researchers, however, finds a direct connection between the political party of the President who appointed the federal judge and the length of a defendant’s sentence.  As the Harvard study reports, federal judges appointed by Republican presidents sentence defendants on average to three more months in prison than federal judges appointed by Democratic presidents.  Republican-appointed judges in the federal system also sentence black defendants more harshly than Democratic-appointed judges.

As will be discussed in this Article, the central premise of the Harvard political sentencing study — that judicial political affiliation influences sentencing outcomes, even those that are highly guided by legislative criteria — also holds true on the state level with respect to elected, rather than appointed, judges.  As we report, empirical evidence from the state of Ohio demonstrates that elected Republican judges sentence defendants to lengthier terms of incarceration than elected Democratic judges by a statistically significant margin.  This evidence suggests that, rather than being entirely guided by specified statutory criteria, judges bring preexisting sentencing ideologies to the bench and make decisions with a range of sentencing outcomes based at least in part on their individual philosophies and beliefs.  Based on these findings, we argue that in order to address the issue of sentencing disparities, reform efforts should take action to specifically address the behavior and motivation of individual judges.

November 17, 2020 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

So much great data and analysis from the Prison Policy Initiative

I have been behind on reading and blogging on various fronts, particularly with respect to a number of notable new items from the Prison Policy Initiative.  I will "catch up" poorly through this set of links to recent PPI works:

November 17, 2020 in Criminal justice in the Biden Administration, Data on sentencing | Permalink | Comments (0)

Notable new Gallup poll numbers on perceptions of the US criminal justice system

Bnlwz2mfyu2twk35wjqfzwThis new Gallup release, headlined "Fewer Americans Call for Tougher Criminal Justice System," reports on new polling number concerning pubic views on the US criminal justice system.  Here are the details:

Americans' belief that the U.S. criminal justice system is "not tough enough" on crime is now half of what it was in Gallup's initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 -- although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is "too tough" (21%) and no change among those who think it is "about right" (35%).

Americans' perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup's annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans' faith in the U.S. criminal justice system remains low according to Gallup's 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system -- the police -- fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats' view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

November 17, 2020 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, November 16, 2020

"Presidential Pardons and the Problem of Impunity"

The title of this post is the title of this quite timely article authored by Frank Bowman III now available via SSRN. Here is its abstract:

This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates.  It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates.  The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate.  But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable.  A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities.  A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

November 16, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Justice Sotomayor dissents at length from SCOTUS refusal to reinstate order for Texas prison to implement COVID protections

As reported in this SCOTUSblog post, the "Supreme Court on Monday afternoon rejected a request from two inmates at high risk for complications from COVID-19 to reinstate an order by a federal district court that would require Texas prison officials to take basic safety precautions to combat the virus."  Justice Sotomayor issued a lengthy dissent from the ruling, which was joined by Justice Kagan, and here are parts from the start and end of this 11-page opinion:

I write again about the Wallace Pack Unit (Pack Unit), a geriatric prison in southeast Texas that has been ravaged by COVID–19.  See Valentine v. Collier, 590 U.S. ___ (2020) (statement respecting denial of application to vacate stay).  The Pack Unit is a “‘tinderbox’” for COVID–19, not only because it is a dormitory-style facility, “making social distancing in the living quarters impossible,” but also because the vast majority of its inmates are at least 65 years old, and many suffer from chronic health conditions and disabilities....

In July, the District Court held a weeks-long trial that revealed rampant failures by the prison to protect its inmates from COVID–19.  In September, the District Court entered a permanent injunction requiring prison officials to implement basic safety procedures.  The Fifth Circuit, however, stayed the injunction pending appeal.  Now, two inmates, Laddy Valentine and Richard King, ask this Court to vacate the stay.  Because they have met their burden to justify such relief, I would grant the application....

The people incarcerated in the Pack Unit are some of our most vulnerable citizens.  They face severe risks of serious illness and death from COVID–19, but are unable to take even the most basic precautions against the virus on their own. If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll.  Twenty lives have been lost already. I fear the stay will lead to further, needless suffering.

November 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Hoping Garden State can germinate a bounty of new criminal justice data

This new Law360 article, headlined "NJ Criminal Justice Data Law Could Spur Reforms Elsewhere," reports on a great new data development in the great state of New Jersey.  Here are excerpts from the piece:

A new law pulling back the curtain on New Jersey's criminal justice system by requiring its attorney general to compile and analyze a wide range of information could serve as a model for the rest of the nation and fuel future reform efforts in the Garden State, experts say.

The measure, which was signed into law on Nov. 9 by Gov. Phil Murphy, calls on Attorney General Gurbir S. Grewal to set up a program to "collect, record and analyze data" on defendants 18 or older, including their race, ethnicity, gender and age, and what happens to their cases, including systematic plea negotiation information that typically goes unrecorded.

Following other initiatives in the state in recent years including sweeping bail reforms, the data collection and analysis will provide a closer look at potential problems in the system and better equip lawmakers to tackle those issues.  For example, the data could provide insight on racial disparities in prosecutions and mass incarceration, experts say.

"Until we have a full picture of what's happening, there's no way to offer a solution that will be comprehensive," said Jesse Kelley, government affairs manager for the criminal justice and civil liberties policy team at the R Street Institute, a libertarian think tank....

Mikaela Rabinowitz, director of national engagement and field operations at criminal justice research organization Measures for Justice, said the law could be a national model in terms of the breadth of the data collection and the recognition of "the need to centralize these disparate sources" of information.

In a country where criminal justice data is spread across various agencies and "you can't actually assess what is going on systemwide," the law is an acknowledgment that "in order to actually understand how the criminal process is working, we need to take data from these disparate agencies and disparate sources and put it all in one place," Rabinowitz said....

The data will include "warrants, arrests, charges, filing of criminal complaints, and indictments," "dismissed or downgraded charges," and "plea agreement negotiations, including data concerning plea offers extended and accepted or rejected by the defendant, plea agreements entered or rejected by the court, and whether the plea agreements involved probation or incarceration," according to the bill.

For cases involving victims, the data will include "the race, ethnicity, gender and age" of the defendant and the victims, the bill says.  "This is potentially groundbreaking legislation, and it calls for data collection and reporting that currently exists nowhere in the United States," Duke University law professor Brandon Garrett told Law360.

Garrett, who leads the university's Wilson Center for Science and Justice, pointed out that states rarely "collect any data on victims, and yet in study after study, we have found that in serious cases, the race of the victim in particular matters a great deal to sentencing."

Data on plea talks also is "typically not recorded by anyone, including prosecutors," Garrett said.  Collecting "such systematic data would be enormously impactful" and "open the black box on charging in criminal cases," he said.  "One hope could be that not only will the public better understand outcomes in the system, but judges, public defenders and prosecutors will themselves better understand their work," he said.

November 16, 2020 in Data on sentencing | Permalink | Comments (0)

Federal judge orders Missouri to improve its parole process

As reported in this local piece, headlined "Judge orders revamp of Missouri’s ‘unconstitutional’ parole system," a notable new federal district court ruling last week "spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings."  Here is more:

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year. “These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.  The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention. “Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

November 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 15, 2020

Granting of compassionate release reduces ridiculous federal sentence by hundreds of years

This CNN piece, headlined "Grandfather serving 505-year sentence ordered to be released 'without delay'," reports on a recent grant of compasionate release to reduce a sentence that would seem like a joke if it had not been real.  Here are some of the details:

In a stunning reprieve for a man sentenced to more than five centuries behind bars for a nonviolent offense, a judge in Los Angeles on Thursday summarily slashed his sentence to time served and ordered his immediate release.

Juan Carlos Seresi, a convicted money launderer whose projected release date from the federal Bureau of Prisons had been July 8, 2419, was suddenly ordered to be freed "without delay" by U.S. District Court Judge Stephen V. Wilson.  Once out, Seresi will be subject to a three-year term of supervised release, according to Wilson's order.

"It's a miracle," Seresi said after hearing the news from his daughter, Patti Mawer, she told CNN.  Mawer, 46, said her father has been behind bars since she was a teenager, but has remained an integral part of her family's life.  "After all this praying and all this hoping, he can't believe it," Mawer added.

Seresi, 73, was one of four defendants sentenced to 505 years behind bars in 1991 for laundering cocaine cartel cash who were featured in a CNN report published in August.  The article noted how the sentences were considered harsh even back then and represent the sort of draconian punishment that has since been widely condemned amid a national conversation around justice reform.

When the case was before Wilson in August, he denied a request by prosecutors to overturn the men's convictions "in the interests of justice" due to special treatment given to a government witness by FBI agents that was not disclosed to the defense.  Wilson conducted a months-long review into the matter and concluded that the men's convictions were sufficiently supported by evidence and testimony unrelated to that particular witness.  All four defendants filed an appeal with the 9th Circuit Court of Appeals, which is pending.

But Seresi's attorneys also filed a motion seeking his release on compassionate grounds, due in part to his advanced age and a diagnosis of high blood pressure making him susceptible to serious complications from Covid-19.  Prosecutors in the US Attorney's Office in Los Angeles did not oppose the motion.

While Wilson found that those factors alone did not entitle Seresi to early release, he noted other factors that — taken together — amounted to "extraordinary and compelling reasons" for granting his freedom.  Seresi was convicted of a nonviolent offense, had already served more than 30 years behind bars, earned three associate degrees while incarcerated and had a near spotless disciplinary record, the judge noted.

November 15, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (5)

Members of Congress urge Attorney General Barr "to suspend all federal executions"

There have already been seven federal executions in 2020, and there are three more federal executions scheduled in the next month: as this BOP page details, one execution is scheduled for this coming Thursday, and two more are scheduled for the second week of December.  But a few members of Congress, as detalled in this press release, have written to Attorney General William Barr to urge him "to suspend all federal executions so the incoming Biden-Harris Administration can evaluate and determine the future use of the death penalty by the federal government."

The full short letter is available at this link, and here are its concluding sentiments:

President-Elect Biden’s plan for strengthening America’s commitment to justice includes the elimination of the federal death penalty and Vice-President-Elect Harris is an original cosponsor of legislation we have introduced to eliminate the federal death penalty. A record number of Americans voted in favor of President-Elect Biden and Vice-President Elect Harris and they deserve an opportunity to implement their policy agenda without the Trump Administration rushing to take preemptive and irreversible steps.

While you will remain in office for a few more weeks, going forward with executions in the weeks before the new administration takes office would be a grave injustice. 

November 15, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon.  By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students.  Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle.  The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. 

This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become.  Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century.  The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.

November 15, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, November 13, 2020

The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

I am sad to report that we have passed yet another milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage of deaths from coronavirus reported among prisoners, and as of Thursday, November 12, this accounting had tabulated "at least 1412 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1990 to 2020.  According to DPIC data, there were a total of 1406 executions from the start of 1990 through today.

Of course, as I have mentioned before, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 93 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

November 13, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (7)

"Redeeming Justice"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Lopez, Terrell Carter and Kempis Songster.  Here is its abstract:

Approximately three decades ago, two co-authors of this Article were sentenced to die in prison.  According to the United States Supreme Court, this sentence represented a determination that they were irredeemable.  This article will interrogate the legal determination that there are some human beings who are incapable of redemption.  In doing so, the article grapples with a basic, yet weighty question.  Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.

Drawing from human rights law and the lived experience of the co-authors, this Article argues that the capacity for redemption is an innate human characteristic, fundamentally intertwined with the legal concept of human dignity.  Taking a pragmatic approach to human rights jurisprudence, it will contend that all humans have a right to redemption and that this right is embedded in the Eighth Amendment through the latent concept of human dignity.

Such a reading of the Eighth Amendment would require a dramatic re-imagination of our criminal legal system.  One that elevates humanity, not deprives it.  One that creates opportunities for healing and human development, not denies it.  As a starting point, it will require that the law never make impermeable decisions about the human capacity for redemption.  Rather, the law should restore hope that change is always possible.

November 13, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, November 12, 2020

Detailing the continued public health catastrophe of COVID in incarceration nation

Sadly, I have been blogging for the better part of a year now about the catastrophe of COVID in the United States for persons who are incarcerated persons, prison staff, their families, and the general public.  We have seen some political, legal and social responses, but this new Washington Post article, headlined "Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say," highlights how bad things have been and still are.  Here is the start of a lengthy piece worth reading in full:

Nobody knows how the ­novel coronavirus sneaked through the barbed wire and imposing gates of Ohio’s Pickaway Correctional Institution, where visitors and volunteers were barred from entering in March.  But the first case showed up April 4.  Within a week, 23 inmates and 17 staff members were found to be infected.  One inmate, Charles Viney Jr., a 66-year-old with a collapsed lung, died hours after testing positive.  Within a month, more than three-quarters of Pickaway’s roughly 2,000 inmates were confirmed positive.  By the end of May, 35 were dead.

Pickaway, where officials acknowledged that efforts to control viral spread were hectic and hindered by imperfect testing, exemplifies the broad challenges facing the nation’s jail and prison systems in the grip of the pandemic. Conditions long considered degrading — including overcrowded, unsanitary housing and inadequate inmate health care — have, in many places, become deadly.

“A prison is now a public health threat,” said Armen Henderson, an assistant professor of medicine at the University of Miami.  He and other criminal justice reform advocates have called for massive reductions in incarceration because of the pandemic.  They argue that measures such as distributing masks or allowing access to hand sanitizer do little to stop the spread of the virus in facilities where people live so close together.

More than 173,000 inmates nationwide have contracted the coronavirus, and almost 1,300 have died, according to the UCLA Law Covid-19 Behind Bars Data Project.  At least 37,000 corrections workers have tested positive and 78 have died.  A study prepared for the National Commission on Covid-19 and Criminal Justice reports that the rate of coronavirus cases in federal and state prisons is more than four times the national rate.  When adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.

In at least 39 states and D.C., governors, local officials or ­sheriff’s departments have taken steps to reduce prison and jail populations since the beginning of the pandemic.  The measures varied widely, from releasing some nonviolent inmates or those who are medically vulnerable to accepting only the most-violent offenders.

Between March and May, prison populations dropped an average of 8 percent and jail populations decreased about 30 percent, according to data reviewed by Sharon Dolovich, a UCLA law professor who directs the Behind Bars Data Project.  The American Civil Liberties Union has filed more than 50 cases aimed at freeing people from prisons, jails and immigration detention facilities, with limited success largely because a 1996 law limits inmates’ ability to sue.

Now, advocates say, those gains are being eroded, leading to fears about additional outbreaks and mounting death tolls.  A recent overview by the Covid, Corrections, and Oversight Project at the University of Texas at Austin found that the death curve in Texas prisons remains “stubbornly high”; in one East Texas prison, the Duncan Unit, nearly 6 percent of inmates have died.  “The truth is, there is really only one way to meaningfully reduce the risk of spread, and that is to release enough people to make it possible for those who remain to socially distance,” Dolovich said.

UPDATE: Here are is just a smattering of additional depressing recent headlines in this space:

November 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Nondelegating Death"

The title of this post is the title of this notable new paper just posted to SSRN and authored by Alexandra Klein.  Here is its abstract:

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols.  Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines.  State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts.  Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation.  It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence.  This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices.  Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion.  The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out.  This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.

November 12, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, November 11, 2020

Eager to honor our veterans caught up in our nation's massive criminal justice systems

5fa97d96f3264.imageEvery year when Veterans Day rolls around, I find myself giving a lot more thought to all the veterans who get caught up in our criminal justice systems.  I often see exhortations to honor "all who served" on this important day, and that necessarily means we need to be sure to honor the disconcerting large number of veterans who spend this day behind bars, or under active criminal justice supervision, or struggling with the enduring burdens of a criminal record.

According to these latest (but dated) BJS statistics, "in 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  Even if the present-day percentage had shrunk considerably, we can still state without any question that there are tens of thousands of veterans spending Veterans Day behind bars today.

And though I cannot find any detailed data on veteran status and probation/parole rate, even if veterans were only 5% of all persons on probation/parole in the US, that would still means that there are hundreds of thousands of veterans currently spending Veteran's Day subject to active community supervision today.

And though I cannot find any detailed data on veteran status and criminal convictions, even if veterans were only 5% of all persons with a criminal record in the US, that would still means that there are millions of veterans currently burdened with a criminal record on Veterans Day 202.

As highlighted in some posts below, I have often used this day to urge the President of the United States to use his clemency pen to honor this day with some grants to veterans.  But, of course, the vast majority of veterans involved in our nation's criminal justice systems are caught up in a state system.  So, those of us eager to really honor all who served ought to be advocating that all chief executives play their part in doing something meaningful for a population that has done something meaningful for all of us.

Some older (some very older) prior related posts: 

November 11, 2020 in Data on sentencing, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

DPIC conducting webinar series on veterans and the death penalty

As detailed here via the Death Penalty Information Center's website, the "Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty." Here is more information and links on the topic:

The Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty.  The webinars, which are co-sponsored by Advancing Real Change, Inc. and Witness to Innocence, will address a broad range of serious issues that have made veterans disproportionately vulnerable to capital prosecution. The series opens Monday, November 9, the week the nation commemorates Veterans Day 2020, with a session on Veterans on Death Row....

The series opens November 9 with an overview of the issues by Veteran Advocacy Project Criminal Programs Director, Art Cody, DPIC Executive Director Robert Dunham, and former DPIC Executive Director and Battle Scars author Richard Dieter. This is followed by panels on Special Issues in Investigating and Presenting Veterans’ Mitigation (Nov. 12); Capital Punishment Under the Uniform Code of Military Justice (Nov. 13); Mental Health Issues in Veterans’ Capital Cases (Nov. 17), and Veterans, Race, and the Death Penalty (Nov. 18). It concludes on November 19, with a session on Wrongful Capital Convictions of Military Veterans, in which veterans Kirk Bloodsworth, Ray Krone, and Ron Wright tell the stories of their cases and how they were wrongfully sent to death row in the country that they had served.

November 11, 2020 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Harvard Law Review SCOTUS issue covers the handful of notable criminal justice rulings from last Term

As hard-core law nerds know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as long-time readers know, in years past I have sometimes been disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, as noted in this post from last year, the 2019 HLR SCOTUS issue provided a sign of the modern criminal justice times with its Foreword and a lead commentary focused on criminal justice issues.  The November 2020 issue of the Harvard Law Review, which is available at this link, has its lead pieces understandably focused on other topics this year, but it remains heartening to see that seemingly all the noteworthy criminal cases of OT 2019 SCOTUS are covered in case comments in this issue: 

November 11, 2020 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 10, 2020

Should we want Congress to try to limit the President's pardon power?

The question in the title of this post is prompted by this notable new New York Times op-ed By Jack Goldsmith.  The full title of this piece highlight its main points: "Trump Loves to Use the Pardon Power. Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses." Here are excerpts:

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.

Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.

Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement....

Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.

There is little that can be done at this point to stave off a probable wave of opportunistic pardons.  But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.

First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice.  Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.

It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted.  The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.

Regular readers surely know that I am MUCH more troubled by the modern disuse of the pardon power than by its misuse.  And Goldsmith's first suggestion to make it a crime to "issue a pardon ... as an inducement to obstruct justice" might arguably make a crime of at least one act of clemency by many of our presidents in the last half-century.  Because the pardon power is already chilled enough, I think we should be trying to enhance and politically motivate its proper use, rather than worrying so much about its occasional misuse.

November 10, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Drug Policy Implications: Elections 2020"

Drug-Policy-Implications-Elections-2020_for-web-email2The title of this post is the title of this panel discussion taking place (on Zoom) next Monday afternoon, November 16, 2020 from 1-2:15 pm EST, sponsored by the Drug Enforcement and Policy Center.  Here is the basic description of the event and the planned speakers:

The 2020 election will have a monumental impact on how the United States addresses a broad range of policy issues, and drug enforcement and policy is no exception.  Numerous states approved medical or full marijuana legalization via ballot initiative, and voters in other states weighted in on drug-related criminal justice ballot initiatives.  At the federal level, marijuana reform has been gaining momentum and federal officials will undoubtedly take cues from the nationwide election results to determine the pace of reform on an array of drug enforcement and policy issues.

Join our panel of experts for a post-election discussion of the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Speakers

  • John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies, Brookings Institution
  • Maritza Perez, director of the Office of National Affairs, Drug Policy Alliance
  • Tamar Todd, legal director, New Approach PAC

Moderated by:

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

November 10, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207

Regular readers, particularly those who also keep up with my work over at Marijuana Law, Policy & Reform, know that I strongly believe that marijuana reform can and should always be a form of criminal justice reform.  This local article, headlined "Prop 207 could have huge impact on criminal justice reform in Arizona," details part of this story in one state one week after its big reform vote:

We are learning more about how Proposition 207 will impact our criminal justice system. The proposition legalizes recreational marijuana in Arizona and will become official when election results are certified in about a month.

Steven Scharboneau, Jr. is an attorney with the Rosenstein Law Group. “Arizona is one of the only states where a drug conviction for marijuana is a felony conviction, so it has life-lasting implications," Scharboneau said....

Adam Trenk is a Rose Law Group partner and director of the firm’s cannabis law department. “I think it’s really a big deal and a really big step for our state," Trenk said. Trenk said Prop 207 is really the first of its kind. “Historically we would, we being the state’s court systems, would seal records, but they wouldn’t necessarily expunge records," Trenk said.

Starting July 12, 2021, people previously convicted of select marijuana offenses can petition to have their records expunged. Essentially, this will give people a clean slate, which is what Scharboneau said his work is all about. “If we really work hard to make the laws more fair so people can actually have a fair chance at that second chance," Scharboneau said....

Rebecca Fealk, the Legislative Policy Coordinator there, said the group is working to get the word out about this measure and the impact it will have on criminal justice reform. “If somebody had a marijuana conviction, they were often denied food stamps, they were denied Pell Grants to be able go to college and do these things that allowed them to be part of our community," she said. “And so by having the opportunity to remove those, we are allowing people to be more successful and remove the harm the criminal justice system has done."

I believe that the Montana marijuana legalization ballot initiative also included some remedial criminal justice provisions, but that such reforms will require follow-up legislative action in other states.  Still, I sense there is continuing and growing momentum in marijuana reform quarters to ensure any and all reforms come with remedial provisions.  When I wrote an article on this topic a few years ago, "Leveraging Marijuana Reform to Enhance Expungement Practices," I was eager to see these intersecting issues get more attention, and I am now quite happy that they are.

UPDATE: I just saw this official press release from yesterday that details an immediate and tangible criminal justice impact from the passage of Prop 207 in Arizona. The release is titled "MCAO to Dismiss All Pending and Unfiled Charges of Possession of Marijuana," and here is the full text:

With the passage of Proposition 207, the Maricopa County Attorney’s Office (MCAO) will be dismissing all pending and unfiled charges of possession of marijuana and any associated paraphernalia charges that are before this office. Instead of continuing to spend resources on these cases, this office will begin implementing the will of the voters immediately.

We are instructing Deputy County Attorneys to file a motion to dismiss any charge covered by Proposition 207. If those charges make up the entirety of the charges of the case, the entire case will be dismissed. If there are other felony charges the case will remain pending, but we will file motions to dismiss the charges covered by Proposition 207. This will include all cases pending in Early Disposition Court, those currently in diversion or pending trial, and those set for sentencing or probation violation hearings.

Priority will be given to cases with court dates and those in custody. The office will also be filing motions to dismiss bench warrant cases where all the charges are covered by Proposition 207.

November 10, 2020 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)