Friday, May 7, 2021

Split(?) Sixth Circuit panel clarifies disparity between actual sentence and sentence under current law can be proper compassionate relief factor

I have been pleased to be able to blog about a significant number of significant circuit rulings on the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth Sixth, Seventh, Ninth and Tenth Circuits issued generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below).  And, yesterday a split(?) Sixth Circuit issued another ruling in this line of important precedents with US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), which gets started this way and thereafter makes key observations on the way to reaching its holding:

Ian Owens appeals the district court’s order denying his motion for compassionate release because it concluded that the disparity between his lengthy sentence and the sentence that he would receive following the passage of the First Step Act was not an extraordinary and compelling reason to support compassionate release.  For the reasons set forth in this opinion, we REVERSE the district court’s order and REMAND for reconsideration of Owens’s motion for compassionate release consistent with this opinion....

Many district courts across the country have taken the same approach as McGee and Maumau and have concluded that a defendant’s excessive sentence because of mandatory minimum sentences since mitigated by the First Step Act may, alongside other factors, justify compassionate release. [cites to more than a dozen notable district court rulings modifying sentences]... 

As explained above, Owens presented three factors that he asserted together warranted compassionate release.  The district court here did not consider two of the factors Owens asserted and should have determined whether the combination of all three factors warranted compassionate release.  In accordance with our holding that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied, we remand to the district court for further proceedings.

I keep putting a question mark next to the notation "split" with respect to this panel decision because here is the (seemingly peculiar) start to the opinion in Owens:

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J., will deliver a separate dissenting opinion that will be appended to the majority opinion at a later time.

Until Judge Thapar appends his dissenting opinion, I am not sure if he disagrees with the main holding of the panel majority or if he has some other concern with this decision.  I presume he is dissenting on the merits, but the idea that sentencing disparities can be at least a factor in considering compassionate release motions does not seem to me to be a particularly controversial proposition since the text of the applicable statute does not expressly provide for any excluded factors concerning what can serve an "extraordinary and compelling reason" to support a sentence modification.

A few of many, many prior related posts:

May 7, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Marijuana legalization and expungement in early 2021"

Marijuana-Record-Relief_for-socialThe title of this post is the title of this great new report authored by David Schlussel that was assisted in various ways by folks at Collateral Consequences Resource Center and Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  Here is the abstract to the report:

Early 2021 was an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana.  In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms — including the automatic expungement of an exceptionally broad array of past marijuana convictions — along with a variety of social equity provisions.

These new laws mitigate past harms of the legal system while also supporting economic and social opportunity for people with a record in several ways.  First, in all four states, expansive automatic expungement provisions will remove the burden of a criminal record from many individuals, while raising the bar on standards for marijuana record relief nationwide.  These states also incorporated more general criminal record reforms into legalization, benefiting people with different types of criminal records in their efforts to reintegrate into society.  Finally, these four states specifically addressed racial disparities in marijuana criminalization by directing tax revenue and business opportunities for legal marijuana to individuals and communities disproportionately affected by criminal law enforcement.  This report and an accompanying infographic summarize the groundbreaking criminal reforms enacted this year as part of marijuana legalization and situate them in the national context. 

The infographic referenced here as well as other links and materials related to this topic can also be found in the report pages for both DEPC here and CCRC here.  In addition, this recent PBS News Hour piece, headlined "As more states legalize marijuana, people with drug convictions want their records cleared," discusses these issues further.

A few recent related posts from Marijuana Law, Policy & Reform:

May 7, 2021 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (1)

Thursday, May 6, 2021

Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption

USA Today has this lengthy new piece highlighting the administration of home confinement in the federal system during the pandemic and the worries about a Justice Department memo which could return offenders to prison. I recommend the piece in full, which is headlined "Inmates sent home during COVID-19 got jobs, started school. Now, they face possible return to prison." Here are some excerpts:

In the weeks and months since he was sent home, RJ Edwards found a job, bought a car, got an apartment for him and his mother and started working toward a bachelor’s degree in computer science....

Edwards, 37, is among the more than 24,000 nonviolent federal prisoners who have been allowed to serve their sentences at home to slow the spread of COVID-19 inside prisons. But a Justice Department memo issued in the final days of the Trump administration says inmates whose sentences will extend beyond the pandemic must be brought back to prison.

Advocates urged the Justice Department to rescind the memo, which was issued by the agency's Office of Legal Counsel. They say it defeats the whole idea of rehabilitation and contradicts President Joe Biden's campaign promise to allow people with criminal pasts to redeem themselves. "They let us go, and we reintegrate, and then it feels like nothing matters. All the hard work you put in, it doesn’t matter. We’re just a number to them," said Edwards, who has five years left to serve.

During a congressional hearing, Sen. Chuck Grassley, R-Iowa, raised concerns about sending people back to prison, especially those who have been following the rules. Of the 24,000 prisoners who were allowed to go home, 151 – less than 1% – have violated the terms of their home confinement and three have been arrested for new crimes. "This highlights how effective home confinement can be," Grassley said....

Reincarcerating people who, for the past year, have been law-abiding would disrupt their rehabilitation and would do little to improve public safety, according to a letter more than two dozen groups sent to Attorney General Merrick Garland last month.  "Establishing community ties and deepening family connections are known to be significant positive factors for reducing recidivism," according to the letter. "Disrupting that process would mean disrupting safe re-integration into society and damaging networks that are vital to improving public safety."

Keeping people behind bars is also costly.  In 2018, the annual cost of housing just one federal prisoner was about $37,000 or $102 per day....

In the past year since they were sent home, the majority of these inmates have finished their sentences or have met the criteria to stay on home confinement.  As of mid-April, 4,500 inmates on home confinement would not have qualified if not for the pandemic, although many of them are likely to meet the criteria in the next months.  About 2,400 have more than a year left in their sentence, [BOP Director Michael] Carvajal told lawmakers.

A little more than 300 have five years left to serve.  That includes Edwards, who was sentenced to 17 years for wire fraud.  He was sent home in July.  By August, he found a job.

Prior related post:

May 6, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Covering some interesting developments in some Capitol riot prosecutions

I have previously noted that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  And today I noticed a bunch of recent press pieces with interesting accounts of certain parts of this federal case processing story for certain defendants.  Here are links and headlines:

From BuzzFeed News, "They Said Trump Told Them To Attack The Capitol. Judges Are Keeping Them In Jail Anyway."

From CNN, "Justice Department preps plea deals for rioters from viral video of cops trapped in Capitol tunnel"

From Law & Crime, "Federal Appeals Court Upholds Decision to Keep Proud Boy Behind Bars Ahead of Trial for Pepper Spraying Police"

From NBC News, "FBI still after 'worst of the worst' in Capitol riot as new arrests come at steady pace"

From the New York Times, "‘There Was a Big Battle in Here’: Lawyers Tour Capitol as a Crime Scene"

Prior related posts:

May 6, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

"What’s Really Wrong with Fining Crimes? On the Hard Treatment of Criminal Monetary Fines"

The title of this post is the title of this interesting new paper authored by Ivó Coca-Vila now available via SSRN.  Here is its abstract:

Among the advocates of expressive theories of punishment, there is a strong consensus that monetary fines cannot convey the message of censure that is required to punish serious crimes or crimes against the person (e.g., rape).  Money is considered an inappropriate symbol to express condemnation. In this article, I argue that this sentiment is correct, although not for the reasons suggested by advocates of expressivism.  The monetary day-fine should not be understood as a simple deprivation of money, but as a punishment that re-duces the offender’s capacity to consume for a certain period of time.  Conceived in this manner, I argue that it is perfectly suitable to convey censure.

However, the practical impossibility of ensuring that the person who pays the fine is the same person who has been convicted of the offense seriously undermines the acceptability of the monetary fine as an instrument of censure.  Minimizing the risk of the fine’s hard treatment being transferred to third parties is a necessary condition for the monetary fine to be considered a viable alternative to lengthy prison sentences.

May 6, 2021 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Federal prison population holding steady at just over 152,000 through first 100 days of the Biden Administration

The day after Joe Biden was inaugurated as President, I authored this post posing a question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable numerical realties about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term in office, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play can and do play lots of different expected and unexpected roles in shaping federal prosecutions and sentencings, and these case processing realities in turn can have unpredictable impacts on the federal prison population.  Consequently, I was disinclined in this January 2021 post to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population.  

Sure enough, we are now well past the "100 days" milestone for the Biden Administration, and the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage show little change.  Specifically, as of May 6, 2021, the federal prison population clocks in at 152,085. 

Given that the federal prison population has not been anywhere near 150,000 in over two decades, folks troubled by modern mass incarceration should perhaps be inclined to celebrate that the considerable yearly population declines that got started in 2014, and that kicked into a higher gear during to the pandemic, may now have set something of a "new normal" for these population totals.  But, few should forget that, in historical and comparative terms, the modern federal prison population is still quite massive, that almost half of this population is incarcerated for a drug offense, that almost a third of this population has "little or no prior criminal history," and that only around a quarter of this group is "serving a sentence for an offense involving weapons" (details drawn from this USSC quick facts as of June 2020).

A few prior related posts:

May 6, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, May 5, 2021

New Urban Institute resources on FIRST STEP Act prison particulars

I learned today via email about two notable new resources from the folks at the Urban Institute engaging with some of the intricacies of the prison reform elements of the FIRST STEP Act. 

First, this posting by Emily Tiry and Julie Samuels, titled "Three Ways to Increase the Impact of the First Step Act’s Earned Time Credits," suggests how this piece of the Act could be improved. Here is a snippet:

The 2018 First Step Act—the first major federal criminal justice reform legislation in nearly a decade—established earned time credits (ETCs) to provide early release opportunities for people incarcerated in the federal Bureau of Prisons (BOP).

But to date, implementation of the ETC program has fallen short of expectations. No one has been released early via ETCs, it remains unclear how many — or if any — have actually received any ETCs, and BOP’s proposed rules for accruing and applying credits are restrictive and incomplete.

Though the COVID-19 pandemic has interfered with ETC implementation plans by severely disrupting available programming, without changes now, the outlook for ETCs having a meaningful impact on opportunities for early release is bleak....  Although the progress so far has been disappointing, we suggest three ways to maximize the ETC system’s impact. The first would require congressional action; BOP could make the other two changes on its own. 

Second, this new resource, titled "The First Step Act’s Risk Assessment Tool: Who is eligible for early release from federal prison?," walks through the risk assessment instrument now applied to all federal prisoners. Here is how the resource is set up (links from original):

The First Step Act offers people incarcerated in federal prison the opportunity to earn credits toward early release.  To help determine who is eligible (after excluding people with certain prior offenses), the US Department of Justice created the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), a risk assessment tool that predicts the likelihood that a person who is incarcerated will reoffend.  This interactive version of PATTERN shows how each risk factor raises or lowers a person’s risk score and can estimate whether they qualify for early release.

May 5, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Might Prez Biden use his clemency power relatively soon?

The question in the title of this post is promoted by this notable new Hill article headlined "Biden set to flex clemency powers."  The headline is a bit more encouraging than the full article for those eager to see some action on this front, and here are some of the details:

White House officials are signaling that President Biden is prepared to flex his clemency powers as officials wade through a large backlog of requests behind the scenes, according to advocates with whom the White House has consulted on criminal justice reform.  The White House held a Zoom call last week to discuss criminal justice reform with advocates and formerly incarcerated people, some of whom are pressing Biden to use his powers to free people jailed on drug offenses and sick and elderly people who pose no threat to society.

While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations.  “It was clear that they are working on something,” said Norris Henderson, founder and executive director of New Orleans-based Voice of the Experienced, who participated in the call.  “They are looking at that right now as an avenue to start doing things.”

The White House declined to comment for this report when asked about Biden’s plans for clemency grants or his timeline.  Asked at a briefing Wednesday whether the Biden administration has a timeline for pardons or commutations, White House press secretary Jen Psaki answered: “I don’t have any previewing of that to provide and probably won’t from here.”

Biden disappointed some advocates by not granting clemency to anyone in his first 100 days in office and has faced pressure to take action to reform the criminal justice system and address racial injustices.  Given Democrats’ slim majorities in Congress, the broad clemency powers afforded to the president could be an attractive way for Biden to show he is taking action on reforming the justice system.  The Justice Department faces a backlog of some 15,000 petitions for clemency.

DeAnna Hoskins, president and CEO of JustLeadershipUSA, said officials communicated on the call last week that Biden is “not waiting until the end of his presidency” to issue pardons or commutations. “It was very promising because he already, from the White House perspective, has staff working on this,” Hoskins said....  Vivian Nixon, executive director of the College & Community Fellowship, described the White House as more noncommittal, saying there was not a “promise to do anything” but that officials acknowledged “that they are looking at this issue very closely.”

Biden’s record on criminal justice is mixed.  He has faced backlash for his role in passing the 1994 crime bill that critics say contributed to mass incarceration and had a disproportionate impact on communities of color.  As part of the criminal justice platform he unveiled on the campaign trail, Biden promised to use his clemency power to “secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes” if elected....

The National Council for Incarcerated and Formerly Incarcerated Women and Girls spearheaded a campaign to pressure Biden to grant clemency to 100 women in his first 100 days in office, but that milestone came and went last week without action from the White House.  The American Civil Liberties Union has petitioned Biden to grant clemency to 25,000 people as soon as possible, calling mass incarceration a “moral failure” and “racial justice crisis.”

White House officials including domestic policy adviser Susan Rice, senior adviser Cedric Richmond and counsel Dana Remus convened the call last Friday to hear criminal justice reform recommendations from advocates, and clemency was among the topics discussed....

“One thing that was very clear from the conversation was there will be a process,” Desmond Meade, president and executive director of the Florida Rights Restoration Coalition, said of Friday’s White House call. “At the end of the day, they know that there are changes that should be made, but there should be a process there that makes it fair for everyone.”...

Friday’s call was the first in what is expected to be a series of White House engagements with criminal justice reform advocates and individuals who have been directly impacted by the prison system.... Participants expressed optimism that the White House is serious about addressing criminal justice reform and giving those who have been impacted by the justice system a seat at the table.

A few of many recent related posts on Prez Biden and clemency:

May 5, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Prisons and jails will separate millions of mothers from their children in 2021"

The title of this post is the title of this notable, timely new briefing from the Prison Policy Initiative authored by Wanda Bertram and Wendy Sawyer.  Here is how it gets started (with links in original): 

This Mother’s Day — as the COVID-19 pandemic continues to put people behind bars at serious risk — nearly 150,000 incarcerated mothers will spend the day apart from their children.  Over half (58%) of all women in U.S. prisons are mothers, as are 80% of women in jails, including many who are incarcerated awaiting trial simply because they can’t afford bail.

Most of these women are incarcerated for non-violent offenses.  Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support.  And these numbers don’t cover the many women who will become mothers while locked up this year: An estimated 58,000 people every year are pregnant when they enter local jails or prisons.

May 5, 2021 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, May 4, 2021

SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity

On Tuesday morning, the Supreme Court heard oral argument in Terry v. United States, and the full oral argument is available here via C-SPAN.  The full argument runs nearly 90 minutes and the quality of the advocacy makes it worth the full listen.  But one can get a much quicker flavor of the tenor of the discussion from just a scan of the headlines of these press accounts of the argument:

From the AP, "Supreme Court skeptical of low-level crack offender’s case"

From Bloomberg Law, "Biden Switch Unlikely to Save Crack Offenders at Supreme Court"

From Law & Crime, "Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased."

From Reuters, "U.S. Supreme Court skeptical of expanding crack cocaine reforms"

From USA Today, "Supreme Court skeptical of applying Trump-era criminal justice law retroactively for small drug offenses"

From the Washington Post, "Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses"

All the "skeptical" questions from the Justices certainly leaves me thinking that the Supreme Court will rule that Tarahrick Terry is not entitled to resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  That may not ultimately be such a big loss for Mr. Terry since, as the Acting SG explained to SCOTUS back in March, he is already finishing up his prison sentence through home confinement and that term is to be completed in September.  I am hopeful that the relatively small number of similarly situated defendants who would be adversely impacted by a Terry loss would have some similar silver lining.

Prior related posts:

May 4, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New federal defender laments BOP's response to COVID and the FIRST STEP Act

The Federal Public and Community Defenders sent this new letter today to Senate Judiciary Committee leaders to follow up on the April 15 oversight hearing concerning the Federal Bureau of Prisons.  The 16-page letter covers a lot of ground, and here are excerpts:

For too long, DOJ and BOP have ignored congressional directives to prioritize the safety and rehabilitation of individuals in its custody, and left tools provided by Congress unused. These failures have been exacerbated by a culture that bends towards opacity and against accountability.  We urge Congress to intervene.  At minimum, it must strengthen and increase its oversight of DOJ and BOP to help ensure that federally incarcerated persons remain safe and that Congress’ vision for sentencing and prison reform is realized.  At best, it will enact legislation to smartly and swiftly lower prison populations and to move vulnerable individuals to a place of relative safety.

For the past 13 months, COVID-19 has torn through BOP facilities.  Meanwhile, BOP has failed to take the necessary steps — or to use available resources — to remediate the pandemic’s risk. Even now, despite the increased availability of vaccines across the country, COVID-19 remains a lifethreatening risk to those in BOP custody.  The death count of incarcerated individuals continues to mount, and conditions in federal detention facilities remain dire....

BOP and DOJ have failed to use the tools Congress gave them to safely lower prison populations.  The failure by DOJ and BOP to use tools to move vulnerable individuals to a place of relative safety — either by transferring them to home confinement or by seeking their release through compassionate release — has exacerbated the consequences of substandard medical treatment and care in BOP....

The First Step Act of 2018 (FSA) was intended to shorten certain federal prison sentences and to reorient the federal prison system away from pure punishment and towards rehabilitation.  The FSA’s ameliorative sentencing provisions have made significant strides: as of September 28, 2020, BOP has released 2,509 individuals who qualified for retroactive Fair Sentencing Act of 2010 relief. 

But since the FSA’s enactment, little has been done to advance the Act’s core prison reform: a system designed to reduce recidivism risk by offering individuals incentives in exchange for their participation in evidence-based programming and productive activities.  To create that system, the FSA directed the DOJ to dramatically expand programming in BOP facilities, and to develop a risk and needs assessment system (“RNAS”) that could determine “the recidivism risk of each prisoner” and “the type and amount of evidence-based recidivism reduction programming for each.”  Unfortunately, DOJ and BOP have failed to meet the programming or RNAS mandates and have undercut the promise of the FSA by promulgating restrictive policies behind closed doors....

Even prior to the pandemic, BOP had a long history of not providing sufficient programs.  Because the recidivism-reduction efforts of the FSA are meaningless without adequate programming, and in light of the IRC’s warning, we are deeply concerned that BOP does not have a plan of action to comply with the FSA requirement that BOP “provide all prisoners with the opportunity to actively participate in evidence-based recidivism reduction programs or productive activities according to their specific criminogenic needs, throughout their entire term of incarceration.”  BOP’s past performance, with inconsistent access and quality across institutions, makes it difficult to have confidence that BOP will meet its statutory obligations in this regard.  We hope that Congress will continue to closely oversee BOP’s efforts on this front, and to appropriate sufficient funding to support adequate programming.

May 4, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Notable NY politician gets furlough from BOP as he is "considered for home confinement"

When I saw the headline of this new New York Post piece, "Sheldon Silver released early on furlough after less than a year in prison," I thought the paper was misusing a term because furloughs from federal prison seem extraordinarily rare. But the story explains it has the right term:

Disgraced former New York Assembly Speaker Sheldon Silver has been sprung from federal prison early on furlough — while he awaits a decision from the agency on whether he can serve out the remainder of his term in home confinement, a report said Tuesday.

Silver — who has served less than a year of his 6 1/2-year sentence — was cut loose from Otisville Prison, in Orange County, New York, and released to his home while awaiting the decision, a source familiar with the matter told the Associated Press.

The 77-year-old crooked former pol was released under DOJ’s expanded powers to grant inmates release amid the coronavirus pandemic, according to the report. In a statement, the Bureau of Prisons said Silver is still “designated” to Otisville Prison, but added that it has the power to transfer inmates to their home on furlough.

“We can share that the Bureau of Prisons (BOP) has authority to transfer inmates to their home on furlough for periods of time while they may continue to be considered for home confinement designation,” a spokesperson said.

The BOP recently notified prosecutors in the Southern District of New York that it was considering cutting Silver loose on home confinement, a spokesperson for the district told The Post. n an email response sent yesterday, the prosecutor’s office — which secured a guilty verdict against Silver for corruption-related crimes during his run as an Albany power broker — stressed that it ardently opposes the move, the spokesperson said.

In a memo last year, former Attorney General Bill Barr gave the director of BOP expanded discretion to release vulnerable inmates from federal lockups amid the pandemic. BOP officials need to take into account a host of factors when determining if an inmate qualifies for home confinement, including “age and vulnerability of the inmate to COVID-19,” according to the memo. In addition, a BOP medical official is supposed to sign off on home confinement releases based on risk factors for a specific inmate, according to the memo....

Silver was sentenced last summer after avoiding lockup for more than five years after he was first convicted. At his sentencing, Judge Valerie Caproni admonished the crooked politician, who was convicted of illegally using his office to benefit two real estate developers in exchange for cash.

“This was corruption pure and simple,” Judge Caproni told the disgraced ex-speaker, whom she had already sentenced twice. “The time, however, has now come for Mr. Silver to pay the piper,” Caproni added.

Because there is always much mystery around the working of the BOP, I have no notion of whether any lower-profile prisoners might get similar treatment.

May 4, 2021 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (3)

"Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?"

The title of this post is the title of this notable new report from The Fines and Fees Justice Center.  Here are some excerpts from the report's "Introduction and Executive Summary":

Over the past two decades, advocates, researchers, government agencies and the media have drawn increasing attention to the dangerous effects of fines and fees, particularly on communities of color and low-income people.  While those moving through the criminal justice system often experience fines and fees as a single, ongoing burden, there are key distinctions between how each of these revenue sources are assessed and imposed.

Fines are monetary sanctions imposed for violating the law. Fees (also known as costs, assessments and surcharges) are additional charges imposed to fund the criminal legal system and other government services.  Fines and some fees are imposed by courts when a person is convicted of a criminal or traffic offense or a municipal code violation. Typically, these fines and fees are owed to the court.  Fees are also often imposed by local governments or their agencies both before and after a person is convicted.  For example, probation fees may be imposed by a local probation department either before trial or after a conviction.  These fees are typically owed to either a city or county government.

Considerable research has uncovered the financial burden and unintended consequences wreaked on the people charged with paying fines and fees.  Yet there has been little, if any, investigation into how much debt is outstanding or delinquent nationwide.  One of the few studies to address the issue found that none of the eight jurisdictions studied had a central repository where information on the total amount of fines and fees owed could be found.  Understanding the full scope of our nation’s criminal justice debt problem is vital to the task of creating an equitable justice system.  Without this information, we cannot accurately evaluate the true impact of fines and fees as a source of government revenue or, more importantly, as a financial burden on those who owe court debt.  The absence of data also results in the absence of accountability for policymakers and justice system stakeholders who support and enact harmful fines and fees policies.

This report addresses fines and fees imposed at conviction in felony, misdemeanor, traffic and municipal ordinance violation cases.  We refer to these fines and fees as “court debt” because it is debt imposed by the court and typically collected by courts or private collection agencies working on a court’s behalf.

This court debt is just the tip of the iceberg when it comes to monetary sanctions in the criminal justice system.  Depending on the jurisdiction, the fines and fees imposed at conviction can be just a fraction of the total amount of unpaid fines and fees owed by people who are or were involved in the criminal legal system.  California, a state which maintains relatively robust data on fines and fees, serves an example — outstanding debt owed to California from the fines and fees imposed at conviction is equal to roughly $10 billion; roughly $16 billion is owed to the state’s counties for one or more of the 23 administrative fees that counties are authorized by state law to impose; and approximately $360 million was owed to counties in juvenile fees.

We chose to focus our investigation on court debt because courts keep a record of every case, and those records should specify the amount of fines and fees imposed at conviction.  We assumed that courts routinely aggregated that data, allowing them to determine the amount of fines and fees assessed.  We also assumed that courts would track how much of those fines and fees were actually collected.  In an effort to obtain this critical information, the Fines and Fees Justice Center contacted judicial offices and government agencies in all 50 states and the District of Columbia that might have data related to outstanding court debt. In a few states, the information related to the data request was already publicly available, but for most of the jurisdictions, a formal request was submitted....

But for half the country ... the full extent of our nation’s problem with court debt is shockingly untraceable and unknown.  And it’s not just the numbers that matter.  If states do not have the means (technological or otherwise) to determine how much money they are owed, there is a strong possibility that reliable data about who holds that debt may also be out of reach.  Without this vital information, stakeholders cannot appropriately weigh other socio-economic factors (apart from poverty) that may correlate with an inability to settle one’s court debt. How can we intelligently assess policy solutions when we can’t obtain a complete view of the problem?...

Knowing how much court debt exists will also allow us to accurately assess whether government resources are being wasted trying to collect debt that people will never be able to pay.  According to a report published by the Brennan Center for Justice, it costs New Mexico’s largest county, Bernalillo, at least $1.17 to collect every dollar of revenue it raises from fines and fees.  The report also found that some Texas and New Mexico counties spend 121 times what the IRS spends to collect taxes on fines and fees collection efforts.  These are valuable funds that could be invested in our communities....

Based on the information that was received, we can document that at least $27.6 billion of fines and fees is owed across the nation.  This figure grossly understates the amount of court debt that people living in the U.S. cannot afford to pay because only 25 states provided data, and the information that many provided was incomplete.  Information concerning the debt totals for the remaining 25 states and the District of Columbia could not be provided or was not available. 

May 4, 2021 in Data on sentencing, Detailed sentencing data, Fines, Restitution and Other Economic Sanctions, Who Sentences | Permalink | Comments (1)

Monday, May 3, 2021

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

May 3, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another round of early (mostly critical) commentary on Jones

I shared in this post some of my first thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here), and then I rounded up a few days later in this post some notable initial critical commentary.  Just over a week later, I have seen a number of additional notable takes on the ruling, and here is another abridged round up: 

From Andrew Cohen, "Supreme Court: Let’s Make It Easier for Judges to Send Teenagers to Die in Prison"

From Brandon Garrett, "Justices' Life Sentence Ruling Is A Step Back For Youth Rights"

From Jack Karp, "Jones Marks Shift In High Court's Juvenile Justice Rulings"

From Marc Levin, "Supreme Court Puts Onus on Lawmakers to Provide Second Chances for Kids"

From Christine Sarteschi and Daniel Pollack, "Life Without Parole for Minors: The Supreme Court and the Statistics"

From Kent Scheidegger, "Dumping a Dishonest Precedent Less Than Honestly — Part I"

From Beth Schwartzapfel, "Supreme Court Conservatives Just Made It Easier to Sentence Kids to Life in Prison"

Some prior recent related posts:

UPDATE: I just noticed this notable observation from Kent Scheidegger over at Crime & Consequences concerning action by the Justices in related cases via the May 3 order list:

The U.S. Supreme Court released its regular Monday orders list today.  Not surprisingly, there were several wake-of-Jones orders in cases that had been on hold for that decision.  Oklahoma v. Johnson, No. 19-250, and United States v. Briones, No. 19-720, were sent back for reconsideration.  These were cases where the lower court decided in an under-18 murderer’s favor based on a broad interpretation of Montgomery v. Louisiana.  Cases where the lower court ruled against the defendant based on a narrow interpretation of Montgomery were simply denied, including Newton v. Indiana, No. 17-1511, and Garcia v. North Dakota, No. 19-399.

May 3, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Interesting and critical accounting of Biden Administration's criminal justice work over first 100 days

Biden-thermometer-2This new lengthy Law360 piece, headlined "Biden Falls Short On Criminal Justice Reform In First 100 Days," provides a fittingly critical review of the Biden Administration's criminal justice work over its first 100 days in office.  I recommend the piece in full, and here are some highlights (along with an interesting graphic):

President Joe Biden made a slew of campaign promises on the criminal justice reform front that he has made little progress on in his first 100 days in office, disappointing some advocates who believed he would prioritize criminal justice reform.

Advocates say that even though Biden entered his presidential term with a full plate of pressing issues to tackle, including the COVID-19 pandemic and economic downturn, he could have easily taken more steps to advance criminal justice reform at the beginning of his administration.

Kara Gotsch, deputy director of the Sentencing Project, a nonprofit research organization seeking to reduce incarceration rates, said she is especially disappointed with the Biden administration because it supported renewing a policy that subjects individuals to mandatory minimum sentences for having trace amounts of fentanyl in their systems.

The policy was enacted under former President Donald Trump and goes against Biden's campaign promise to end mandatory minimum sentences for federal drug offenses, according to Gotsch.  Gotsch said she is outraged that Biden's administration ignored advice from lawmakers, the legal community and criminal justice organizations to not support the policy when Congress was weighing whether or not to re-up the rule. Congress voted last week to renew the policy. "It's just mind-boggling that we are having this conversation that is a repeat of conversations that I personally have been having for decades," Gotsch said.

Biden supports criminal justice reform in his speeches and public statements, which sets an important tone for his administration, but his words are not leading to action on criminal justice reform, advocates say.

In Biden's March proclamation about "Second Chance Month" in April, he said his administration supports giving second chances to people by "diverting individuals who have used illegal drugs to drug court programs and treatment instead of prison" and "eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."

"So why are we literally doing the opposite, which is to expose more people to the harshest mandatory minimums on the books?" Gotsch said.

One of the biggest actions Biden took was issuing an executive order in his second week of office ending the use of privately operated federal prisons.  That move reinstated an order first issued by former President Barack Obama, which Trump had reversed.  Even that action from Biden, however, didn't go far enough to reform the criminal justice system, advocates say.

Brandon Buskey, deputy director of the American Civil Liberties Union's Criminal Law Reform Project, explained that one of the problems with Biden's order is that it doesn't immediately end federal prison contracts with private operators. Instead, the order phases out these contracts, which are usually for five to 10 years, by preventing them from being renewed when they expire, he said....

Advocates also say that Biden should have extended his executive order to privately operated civil immigration detention centers rather than limiting it to criminal detention facilities under the purview of the Federal Bureau of Prisons.

Biden's inaction so far doesn't mean that he won't keep his criminal justice reform promises though, scholars say. Professor Andrew Sidman, chair of the political science department at John Jay College of Criminal Justice, said it is common for modern presidents to overpromise during their presidential campaigns and underdeliver in their first 100 days in office and beyond.  But Sidman said he believes that Biden will eventually get to criminal justice reform during his time in office....

When Law360 asked the White House about Biden fulfilling his criminal justice reform promises, a spokesperson pointed to several public statements that press secretary Jen Psaki has made about the president still being committed to criminal justice reform.  Psaki has said that Biden is waiting on Congress to pass reform legislation.

But Biden could have easily granted clemency to hundreds of incarcerated individuals serving lengthy sentences for minor drug offenses, commuted the sentences of federal inmates on death row and issued a moratorium on federal executions — all actions that he promised to take during his presidency — within his first 100 days without Congress, experts say....

Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, a nonprofit research and policy organization, said that Biden immediately addressing the pandemic was important for criminal justice reform.... Ann Jacobs, executive director of the John Jay College Institute for Justice and Opportunity, added that prioritizing public health and the economy are crucial for crime prevention because research shows that people are more likely to commit crimes when they are desperate or unemployed.

Jacobs said that Biden has created a solid foundation for criminal justice reform within his 100 days by appointing top officials within the departments of Homeland Security, Education and Justice who understand criminal justice reform....

Rahman said the next six months will be a better indicator of how the Biden administration is doing on criminal justice reform.  The administration has lots of upcoming opportunities to reaffirm its commitment to criminal justice reform, including by not sending individuals released on home confinement during the pandemic back to prison and allocating money from the American Rescue Plan to reform efforts, she said.

Congress allocated $1.5 billion in the American Rescue Plan to the U.S. Department of Health and Human Services for community-based mental health services that could be used as alternatives to incarceration and would be a substantial investment in criminal justice reform, Rahman said. "The devil is in the details, and truly, it's an opportunity for the administration to put money where their mouth is on criminal justice reform," Rahman said.

A few prior recent related posts:

May 3, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Sunday, May 2, 2021

With new good behavior rules, is California on track to achieve historic "cut 50" in its prison population?

The question in the title of this post is prompted by this new AP article, headlined "76,000 California inmates now eligible for earlier releases," though it also picks up on a broader, decades-long prison reform story in the Golden State. First, from the AP:

California is giving 76,000 inmates, including violent and repeat felons, the opportunity to leave prison earlier as the state aims to further trim the population of what once was the nation’s largest state correctional system.

More than 63,000 inmates convicted of violent crimes will be eligible for good behavior credits that shorten their sentences by one-third instead of the one-fifth that had been in place since 2017.  That includes nearly 20,000 inmates who are serving life sentences with the possibility of parole.

The new rules take effect Saturday but it will be months or years before any inmates go free earlier. Corrections officials say the goal is to reward inmates who better themselves while critics said the move will endanger the public.

Under the change, more than 10,000 prisoners convicted of a second serious but nonviolent offense under the state’s “three strikes” law will be eligible for release after serving half their sentences.  That’s an increase from the current time-served credit of one-third of their sentence.  The same increased release time will apply to nearly 2,900 nonviolent third strikers, the corrections department projected....

The changes were approved this week by the state Office of Administrative Law. “The goal is to increase incentives for the incarcerated population to practice good behavior and follow the rules while serving their time, and participate in rehabilitative and educational programs, which will lead to safer prisons,” department spokeswoman Dana Simas said in a statement.  “Additionally, these changes would help to reduce the prison population by allowing incarcerated persons to earn their way home sooner,” she said....

Simas said the department was granted authority to make the changes through the rulemaking process and under the current budget.  By making them “emergency regulations” the agency could impose the new rules without public comment.  The department now must submit permanent regulations next year. They will be considered a public hearing and opportunity for public comment.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that represents crime victims, said the notion that the credits are for good behavior is a misnomer. “You don’t have to be good to get good time credits. People who lose good time credits for misconduct get them back, they don’t stay gone,” he said. “They could be a useful device for managing the population if they had more teeth in them. But they don’t. They’re in reality just a giveaway.”...

California has been under court orders to reduce a prison population that peaked at 160,000 in 2006 and saw inmates being housed in gymnasiums and activity rooms.  In 2011, the U.S. Supreme Court backed federal judges’ requirement that the state reduce overcrowding.

The population has been declining since the high court’s decision, starting when the state began keeping lower-level felons in county jails instead of state prisons.  In 2014, voters reduced penalties for property and drug crimes.  Two years later, voters approved allowing earlier parole for most inmates.  Before the pandemic hit, the population had dropped to 117,00 inmates. In the last year, 21,000 more have left state prisons — with about half being held temporarily in county jails.

This blog has long followed the many remarkable chapters in California's prison reform story (see a sampling below).  I particularly recall amusing myself with this post and title, "Hasta la vista, prison overcrowding!", when Gov Schwarzenegger 15 years ago issued a proclamation calling the California Legislature into special session to address prison crowding issues.  The state prison population was actually well over 170,000 around that time.  Some population reductions started around the Plata litigation — the SCOTUS ruling noted that, at "the time of trial, California’s correctional facilities held some 156,000 persons" — and further prison population reduction efforts kicked into high gear in the years following the Supreme Court's important Plata decision.

As this AP article notes, before the pandemic, the California prison population was under 120,000.  But as of last week, as detailed in this state weekly population report, the population now stands at 95,817.  If these new good behavior rules could possibly result in another prison population reduction of around 10,000 — and that is probably a very big "if"  — then California will have achieved a remarkable decarceration milestone.  If it can get down to around 86,000 prisoners, the state of California — which not so long ago had the largest state prison population within a country with the largest prison populaion in the world — will have cut its prison population by 50%.  I would surely call that a golden achievement for the Golden State. 

A few of many prior related posts about California prison populations and reforms:

May 2, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

May 2, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (8)

Saturday, May 1, 2021

Assessments and concerns regarding Biden Administration's early criminal justice efforts

This past week brought the end of the first 100 days of Joe Biden's presidency along with a big speech from Prez Biden to Congress.  In this prior post, I lamented a bit that the big speech did not devote much attention to criminal justice reform issues.  And here is a round-up of some recent articles and commentary reviewing the work of the first 100 days and urging the Biden team to lean into criminal justice issues more:

From Christina Carrega at CNN, "Biden vowed to end the death penalty. Activists are demanding action as he nears the 100-day mark"

From Morgan Chalfant at The Hill, "White House officials meet virtually with criminal justice reform advocates"

From Marc Levin and Khalil Cumberbatch at USA Today, "On racial and criminal justice, Biden has shown some promise, but little progress"  

From Billy Binion at Reason, "If Biden Is Serious About Criminal Justice Reform, He Needs To Get Serious About Qualified Immunity"

From Shaun King at Newsweek, "Joe Biden Must Fix the Racist Criminal Justice System He Helped Create"

From Erica Zunkel and James Zeigler at USA Today, "Biden administration needs to walk the walk on second chances for prisoners; The Department of Justice routinely opposes releases, doing so in clearly meritorious cases."

May 1, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

"Obstruction of Justice: Redesigning the Shortcut"

The title of this post is the title of this new paper authored by Ellen Podgor just published in the BYU Law Review and now available at this link. Here is its abstract:

When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important.  It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity.  Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment.  But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, or varying interpretations of government officials.

This Article examines obstruction of justice in the federal system, looking at it in three different contexts: as a criminal offense, as a sentencing enhancement, and as a basis for a judicial or presidential impeachment.  It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters.  It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a "short-cut" offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries.  Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution.  The actual practice, as recently seen in the differing view of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstruction conduct by President Donald Trump — outlined in the Mueller Report — highlights the inconsistency in this area of the law.  This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge or in conjunction with other shortcut offenses such as false statements and perjury.

May 1, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, April 30, 2021

Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing

As reported in this local article, headlined "Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’," the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel....

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State's Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004); Minn. Stat. § 244.10; Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant's Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

April 30, 2021 in Blakely in the States, Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Prez Biden gets timely reminder that criminal justice reform presents unique bipartisan opportunity

I complained in this post that Prez Biden did not have all that much to say about criminal justice issues in his lengthy speech to Congress this week. But I now see from a number of news reports that criminal justice reform got some brief, but especially notable, bipartisan attention after the speech.  This Washington Post piece, headlined "GOP lawmaker who voted to overturn Biden’s election win wants to help him on criminal justice reform," provides these details:

Moments after President Biden concluded his first speech to a joint session of Congress on Wednesday, he was greeted by lawmakers aiming to get in some coveted face time with the president.  Among them was Rep. Troy E. Nehls (R-Tex.), who helped barricade the entrance of the House Chamber during the insurrection Jan. 6 but still voted to overturn the election that Biden won.

But in a brief exchange Wednesday night, Nehls, wearing a Texas-flag mask, introduced himself to Biden as “a sheriff from Texas” and offered his experience policing Fort Bend County to help with the president’s efforts on criminal justice reform.  “I want to help with the criminal justice reform. I want to be a part of it. It’s needed,” he said to the president. “I don’t know how to reach out to you, but I have the experience.”

In response, Biden assured him they’d be in touch, saying, “I’ll reach out to you.”... A White House official told The Washington Post on Thursday that Biden “appreciated Rep. Nehls’s offer and their conversation.”...

During last year’s GOP primary for an open seat in Congress, Nehls painted himself as a fierce Trump advocate.  Texas Monthly reported that he stated on his campaign website how he would “stand with President Trump to defeat the socialist Democrats, build the wall, drain the swamp, and deliver on pro-economy and pro-America policies.”  After he secured the nomination, Nehls pivoted to a more moderate approach for the general election, focusing on health care and criminal justice reform.  He also removed the “Standing with Trump” section from his website as Trump’s approval among Republicans was waning, according to the Houston Chronicle.  He went on to defeat his Democratic opponent, Sri Preston Kulkarni, by seven percentage points in November....

On Wednesday night, Nehls tweeted during the speech about the president’s handling of the southern border and slammed Democrats for reportedly handing out masks in the Chamber that were made in China. But in their exchange on criminal justice reform, Nehls took on a much different tone than the one he used on Twitter.

“I don’t want to hurt your reputation,” the president said to Nehls of his offer, according to video of the moment. Before Biden went to talk to another lawmaker, Nehls made his final plea: “I can do a whole lot of good in that conversation.”

This Texas Tribune article, headlined "Freshman GOP Texas congressman made a personal pitch to Joe Biden: Let me help with criminal justice reform," provides some more details concerning the type of reforms that Rep Nehls seems eager to champion:

Biden administration staff reached out to Nehls' office on Thursday morning, according to Nehls spokesman Daniel Gribble.  Gribble added that Nehls is "optimistic about common sense reforms they can accomplish" and the congressman's focus is "recidivism reduction through inmate training programs."

"As Sheriff, Rep Nehls implemented HVAC and welding programs for non-violent inmates at the county jail," Gribble said.  "He had wild success reducing the 2 year re-arrest rate with participating inmates.  He’d like to see similar programs available in County jails across the country and is working on legislation that will make that possible."

April 30, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (11)

Great example of clemency leading to more compassion ... in the form of compassionate release thanks to FIRST STEP Act reforms

I am not sure if anyone is trying to make a comprehensive list of the wide array of factors that federal courts have referenced in granting sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) ever since the FIRST STEP Act allowed federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons.  Thankfully, district and circuit court have consistently recognized that, in the word of the Second Circuit in US v. Brooker, 976 F.3d 228 (2d Cir. 2020), the "First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release."  And, via this new Law360 article, headlined "Ex-Detroit Mayor Ally Released From Prison Years Early," I saw a new opinion with a particularly notable reason given for such a reduction.  Here  are the basics and context from the article:

A former contractor and co-defendant to ex-Detroit Mayor Kwame Kilpatrick on Thursday was granted compassionate release from prison after serving eight years of a 21-year sentence over a municipal bribery and kickback scheme, with the judge citing health problems and the fact Kilpatrick had his sentence commuted. U.S. District Judge Nancy Edmunds reduced the sentence for Bobby Ferguson, 52, to time served, noting his underlying medical conditions that place him at grave risk were he to contract COVID-19, and the fact that Kilpatrick — the much more culpable defendant in the case — in January was granted a reprieve by former President Donald Trump.

Judge Edmunds said at the time of the original sentencing there were "serious differences" between Ferguson's conduct and that of Kilpatrick — the mastermind of the pay-to-play scheme to exchange city business for bribes and kickbacks.  That Ferguson is left facing a prison term more than twice as long as Kilpatrick served constitutes an "extraordinary and compelling" reason to grant Ferguson compassionate release, she said.  "He was not the driver of the bus; that was Mr. Kilpatrick, where the power resided," Judge Edmunds said.

Michigan federal prosecutors had strongly opposed granting Ferguson compassionate release, calling Kilpatrick's commutation "wrongful" and highlighting Ferguson's earlier convictions for assault and other alleged misdeeds.  The government also disputed that Ferguson's hypertension, diminished lung capacity due to an injury and high cholesterol merited an early release.   The government further argued that Ferguson had not exhausted his administrative remedies with the Bureau of Prisons, since he had only petitioned the prison warden for compassionate release based on his health issues and not the disparity in sentence that resulted from Kilpatrick's release.

However, Judge Edmunds said she was persuaded by other court decisions in finding that so-called "issue exhaustion" is not required for compassionate release. She also noted his prior violent crimes occurred decades ago, and that Ferguson hasn't displayed any such "hotheadedness" while incarcerated.

The full 11-page ruling this case is available at this link, and here is a key passage:

Defendant now faces the prospect of a period of incarceration much longer than a more culpable co-defendant.  At the time of sentencing, the Court noted there were “serious differences” between Defendant’s conduct and that of Mr. Kilpatrick. (ECF No. 493, PgID 16285.)  More specifically, Defendant was not an elected official and had been charged with and convicted of a substantially smaller number of charges. (Id.) The Court therefore concluded that Defendant deserved a shorter sentence than Mr. Kilpatrick and ultimately sentenced Defendant to a term of imprisonment 75% as long as Mr. Kilpatrick’s sentence. That Defendant now faces a period of incarceration more than twice as long as the time Mr. Kilpatrick served is both extraordinary and compelling.  See United States v. Sapp, No. 14-cr-20520, 2020 U.S. Dist. LEXIS 16491, at *5 (E.D. Mich. Jan. 31, 2020) (defining “extraordinary as beyond what is usual, customary, regular, or common” and “a compelling reason as one so great that irreparable harm or injustice would result if the relief is not granted”) (internal quotation marks and citation omitted).

The government argues that avoiding unwarranted sentence disparities, one of the § 3553(a) factors, should not be part of this step of the analysis and that taking this into account would contravene the interest in finality of sentences.  The Sixth Circuit has held, however, consistent with all other circuit courts that have addressed this issue, that district courts have “full discretion” to define extraordinary and compelling reasons. See Jones, 980 F.3d at 1109; see also Brooker, 976 F.3d at 237 (noting that “a district court’s discretion in this area — as in all sentencing matters — is broad”). The only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone is not sufficient.  See 28 U.S.C. § 994(t).  That particular circumstances may also factor into the Court’s analysis under § 3553(a) has no bearing on whether they can be considered extraordinary and compelling.  And, here, the disparity only arose recently due to the unique circumstance of a co-defendant being granted a Presidential commutation.

While the finality of sentences is an important principle, the compassionate release provision of § 3582(c) “represents Congress’s judgment that the generic interest in finality must give way in certain individual cases and authorizes judges to implement that judgment.”  See United States v. McCoy, 981 F.3d 271, 288 (4th Cir. 2020) (internal quotation marks and citation omitted).  The Court finds this to be an appropriate case in which to do so. Not only has Defendant served a slightly longer term of imprisonment than a more culpable co-defendant, but his motion comes during an unprecedented global pandemic and Defendant has an increased vulnerability to the virus.

April 30, 2021 in Clemency and Pardons, FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"A better path forward for criminal justice: A report by the Brookings-AEI Working Group on Criminal Justice Reform"

The title of this post is the title of this lengthy new report which, as the title explains, is a product of a working group of The Brookings Institution and The American Enterprise Institute for Public Policy Research.  In addition to the full pdf, one can also access each part of this report online here, and here is are the closing sentiments authored by Rashawn Ray and Brent Orrell in the report's conclusion:

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda.  The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution.  The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system.  These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

All the individual chapter should be of interest to folks concerned about all aspects of criminal justice reform, and these chapters ought to be of particular interest to those who follow sentencing and corrections issues closely:

April 30, 2021 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Thursday, April 29, 2021

US Sentencing Commission releases FY 2021 first quarter sentencing data showing COVID's continued impact on federal sentencings (and USSC data)

A helpful colleague made sure that I did not overlook the fact that the US Sentencing Commission this week published here its latest quarterly data report which covers "Fiscal Year 2021 - 1st Quarter Preliminary Cumulative Data (October 1, 2020, through December 31, 2020)."  These new data provide another official accounting of how COVID challenges continued to dramatically reduce the number of federal sentences imposed through the end of 2020.  Specifically, as reflected in Figure 2, while the three quarters prior to COVID averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Figure 2 also shows that it is a steep decline in immigration cases that primarily accounts for the decrease in overall cases sentenced.

Also quite interesting is the big jump reported in these data of the number of below-guideline variances granted in the last two quarters (as detailed in Figures 3 and 4).  My colleague had this to say about this data: 

The overall rate of downward variances shot up recently and is staying up, while not surprisingly, the rate of within Guidelines sentences have dropped considerably.  The only apparent explanation is that judges are varying downward more frequently in light of the pandemic: COVID Variances to help lower the prison population and likelihood of infection spread.  Hopefully, if the Commission ever gets a quorum, it addresses the issue of infectious diseases and variances.  After all, 28 USC 994(g) states that “The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.”  Currently, 81 of the 193 BOP facilities are over their rated capacities making them that much more susceptible to outbreaks. 

Though I certainly want to believe more federal judges are imposing lower sentences because of COVID issues in prison, other data suggest there may be more to the story.  Specifically, in this new quarterly report, the USSC data still show that only 8.6% of offenders received a sentence of probation (in FY 2019, the last pre-COVID year, 7.7% of offenders receive probation; in FY 2018, 8.4% did).  In addition, the average sentence for drug trafficking and firearms and fraud seem largely unchanged when compared to pre-COVID years (though they have ticked down a month or two).  Still, if federal prosecutors during COVID are only moving forward with the most aggravated of cases, then having a few more more persons getting probation and many getting a few months less in prison may still reflect a real and consequential change in sentencing practices. 

In the end, though, I think the sharp increase in variances is primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.  Immigration sentences are, generally speaking, the least likely to include a variance; drug and fraud sentences are the most likely to include a variance.  Thus, when the case mix includes significantly fewer immigration cases, the overall sentenced population will have a greater percentage receiving variances.  Notably, this case mix story also surely explains why Figure 5 reports that the "Average Guideline Minimum" and the "Average Sentence" have been higher the last two quarters than any time in the last five years.  Immigration cases, generally speaking, have lower guideline minimums and lower average sentences; take a lot of these cases out of the overall mix, and the average for all the other cases will increase.

Ah, the many joys of complicated sentencing data!

April 29, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

New detailed polling reveals broad support for broad use of clemency power to commute sentences

Poll_03-individuals-who-served-more-600x413This interesting new report at The Lab - The Appeal details the results of interesting new polling showing broad support for clemency on behalf of a wide array of different types of persons in prison. The report is authored by Molly Greene and Sean McElwee under the headline "Poll: Use Clemency Power to Fight Mass Incarceration." I recommend clicking through to see all the details, but here is part of the narrative:

New national polling from Data for Progress and The Lab, a policy vertical of The Appeal, shows that voters support using executive clemency as a tool to reverse decades of over-incarceration, and commuting prison sentences for broad categories of people who can be safely returned to their communities.

Even after decades of excessively long and discriminatory prison sentences in the United States, and amid growing consensus that we need to dramatically reduce prison populations, executive clemency remains a largely overlooked and underused path toward reversing the punitive excesses of mass incarceration. Grants of clemency need not be rare exceptions....

While momentum for sentencing reform has grown at both the state and federal level, American prisons remain filled with people serving lengthy, decades-long sentences, including those imposed in the 1990s and the early 2000s, when the punitive zeal of prosecutors, judges, and lawmakers was at its peak.  As a result, the American prison population is aging, with growing proportions of incarcerated people in their 50s, 60s, and older who increasingly require expensive medical care and who are unlikely, if released, to commit future crimes.  People also remain imprisoned for convictions that result in far shorter terms today, meaning people are caged, separated from their families and communities, for reasons we now accept cannot be justified.

The power to commute sentences and pardon convictions — held, at the federal level, by the president, and by virtually all governors or governor-appointed boards in the states — can efficiently reduce this over-incarceration, while also redressing racial injustice that pervades the criminal legal system, including in sentencing.  Our polling shows national support for using executive clemency in precisely this way.  In particular, voters support commuting sentences of categorical groups based on age, health, time served, the nature of the offense, and as a means to reduce racial disparities and maintain consistency with current sentencing practices.

The polling results are relatively consistent no matter the specific inquiry in this poll, with roughly 50% to 70% of all respondents supporting sentence commutations for various populations and with Democrats generally supporting clemency by about 10% to 20% more than Republicans (and Independents in between). Again, I highly recommend clicking through to see all the details.  Interestingly, a question that focuses on giving retroactive relief based on new laws generated the strongest of all the responses in support of commutations:

Commutations based on time served:

  • 73 percent of likely voters, including 78 percent of Democrats, 78 percent of independents, and 65 percent of Republicans, support commuting the sentences for individuals who have already served more than what current law requires for that offense.

April 29, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

April 29, 2021 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (0)

Wednesday, April 28, 2021

Not even much lip service about sentencing reform in Prez Biden's first address to Congress

Prez Joe Biden gave a very lengthy speech this evening (full text here), but it only included a precious few sentences about criminal justice reform.  Here are these sentences:

We have all seen the knee of injustice on the neck of Black America. Now is our opportunity to make real progress.

Most men and women in uniform wear their badge and serve their communities honorably.  I know them.  I know they want to help meet this moment as well.

My fellow Americans, we have to come together.  To rebuild trust between law enforcement and the people they serve. To root out systemic racism in our criminal justice system.  And to enact police reform in George Floyd’s name that passed the House already.

I know the Republicans have their own ideas and are engaged in productive discussions with Democrats.  We need to work together to find a consensus.  Let’s get it done next month, by the first anniversary of George Floyd’s death.

The country supports this reform.  Congress should act.

Though I was pleased to hear small mention of policing reform by Prez Biden, I was disappointed (though not really surprised) that there was not any other mention of any other criminal justce reform efforts.  And this new NPR piece, headlined "Activists Wait For Biden To Take Bold Action On Criminal Justice Reform," picks up this theme.  Here are excerpts:

President Biden campaigned on a plan to remake the criminal justice system. He admitted that many of the tough-on-crime positions he staked out 30 years ago just did not work.  He said he would focus on drug treatments and on cutting long mandatory prison sentences.  NPR's Carrie Johnson has been talking to progressive activists who are waiting for that to happen....

JOHNSON: The Biden White House has been talking regularly with [Inimai] Chettiar and others who want to overhaul the justice system. Kevin Ring advocates for people in prison at the group Families Against Mandatory Minimums.

KEVIN RING: FAMM's been around 30 years. I don't know that we've ever had that kind of outreach from the White House or the Justice Department.

JOHNSON: Ring says he had a guarded optimism about Biden based on his campaign rhetoric.

RING: But there was also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about.

JOHNSON: Ring says it's still early, but the White House seems to be trying to lay the groundwork for more foundational change. Kara Gotsch of the Sentencing Project isn't so sure about that.

KARA GOTSCH: The lip service is good, but we need more, more action....

JOHNSON: Other advocates credit the Biden team for supporting bipartisan legislation that would finally equalize the penalties for people caught with crack cocaine.  Since the 1980s, offenses involving crack have been punished 100 times more harshly than the powder form of the drug, which has been more popular with white people.  Chettiar of the Justice Action Network thinks that bill could become law this year.  With Congress so closely divided between the two political parties, the odds of legislation that would transform the justice system are pretty slim.  That's why advocates are pushing the White House and DOJ to go big now before time runs out.

April 28, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (14)

Is Justice Kavanaugh eager to bring proportionality review to government sanctions ... to protect speech under the First Amendment?

It comes as no suprise that a lot of attention is being given to the Supreme Court case argued today inolving a First Amendment claim brought by a young public high schooler suspended from the cheerleading squad for dropping f-bombs on his Snapchat.  This Politcio piece reviews the basics of the arguments, and I was both surprised and struck by a comment during argument by Justice Kavanaugh.  Here, via this oral argument transcript from Mahanoy Area School Dist. v. B. L., is the comment and context (with my emphasis added):

[A]s a judge and maybe as a coach and a parent too, it seems like maybe a bit of over -- overreaction by the coach.

So my reaction when I read this, she's competitive, she cares, she blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup or not making all league....

So maybe what bothers me when I read all this is that it didn't seem like the punishment was tailored to the offense given what I just said about how important it is and you know how much it means to the kids.  I mean, a year's suspension from the team just seems excessive to me.

But how does that fit into the First Amendment doctrine or does it fit in at all in a case like this?

I lack the First Amendment expertise to know if the notion of reviewing state sanctions for excessiveness or proportionality is particularly notable or novel.  But I have enough Eighth Amendment expertise to know it could be so vauabe if Justice Kavanaugh and other Justices were far more willing to question state sanctions in the form of extreme prison terms when they do not "seem like the punishment was tailored to the offense" and "just seems excessive."

Though finding notable these comments by Justice Kavanaugh about what seemed to him an excessive punishment, I doubt we should be expecting him to carry these sentiments over the the Eighth Amendment.  After all, Justice Kavanaugh's first big Eighth Amendment ruling functionally limited its protection for juvenile murderers via the Jones opinion.

April 28, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"Harm Reduction at the Center of Incarceration"

The title of this post is the title of this notable new report from Square One Project authored by Nneka Jones Tapia who, according this press release, is "one of the first clinical psychologists to ever run a jail" and who has piloted "innovative healing-centered programs at Cook County Jail.  Here is an overview of the report from this webpage discussing its contents:

Everyone within a correctional facility — both the staff and the people housed there — is exposed to trauma at a significantly higher rate than the general population.  In this sense, the institution itself is traumatic.  And because of the connective tissue that exists among all of us, the effect of this traumatic system spreads beyond the walls of an institution and into families and communities.

Physical and procedural transformation of correctional facilities is imperative to promoting harm reduction at large.  The STAAC framework for harm reduction can guide necessary shifts in correctional system policy, procedure, and training to support the health of correctional staff and their families, the people housed in the facility and their families, and the broader community.

April 28, 2021 in Prisons and prisoners | Permalink | Comments (0)

Tuesday, April 27, 2021

Evan Miller, of Miller v. Alabama, sentenced again to LWOP for murder committed when he was only 14

As reported in this AP piece, headlined "Juvenile lifer who set precedent sentenced to life again," a high-profile juvenile murderer was sentenced yet again to life in prison without parole despite having helped win a Supreme Court ruling reversing his original LWOP sentence. Here are the details:

Evan Miller was just 14 when he committed the slaying that sent him to prison. In reviewing his case, the U.S. Supreme Court banned mandatory life without parole sentences for juveniles — saying judges and juries should consider the special factors of youth — a decision that eventually led to inmates across the country getting a chance at release.

But Miller will not get that chance. A judge on Tuesday handed down a second life sentence without possibility of parole.

Lawrence Circuit Judge Mark Craig ruled that Evan Miller, despite being a young teen when he committed his crime, met the legal criteria to be sentenced to life in prison without the chance of parole. Craig said the severity of Miller’s crime outweighed the mitigating factors of Miller’s age and his abuse-filled childhood that the defense argued made him deserving of an opportunity of a chance to get out of prison some day. Craig said a sentence of life without the possibility of parole was the “only just sentence” over the lesser punishment of life with a chance of parole after 30 years.

Miller was 14 in 2003 when he and another teen beat Cole Cannon with a baseball bat before setting fire to his trailer, a crime for which he was originally sentenced to a mandatory life sentence. Before handing down the sentence, Craig repeated the line that Miller was attributed with saying before he delivered a final blow to Cannon: “I am God. I’ve come to take your life.” Craig said those were some of “the most chilling words I have heard.”

Craig said he was not convinced Miller could be rehabilitated and noted that Miller was the primary aggressor in the slaying. “Had you not made the decisions that night, Mr. Cannon, in my view, would still be alive,” Craig said. “You showed cunning, not clumsy, rash thinking.”

Miller, now 32, appeared during the hearing, which was conducted virtually, by video link from an office at the Alabama prison where he is incarcerated. He did not visibly react as the sentence was read.

The Supreme Court in 2012 ruled in Miller’s case that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In the 2012 opinion in Miller’s case, justices ordered that judges and juries should consider “children’s diminished culpability, and heightened capacity for change” should make such sentences “uncommon.”...

While other juvenile lifers across the country have seen their sentences reduced because of Miller’s case and a later ruling that made the decision retroactive, his own case had lingered without a decision until Tuesday. At an earlier resentencing hearing, Miller’s lawyers cited his childhood of physical abuse and neglect and argued that at 14, his brain was not fully developed....

Alabama Attorney General Steve Marshall said the judge, “restored the punishment that is fitting for Evan Miller’s wicked actions.” “When Evan Miller robbed and savagely beat his neighbor, setting fire to the man’s trailer and leaving his incapacitated victim to die a horrible death, he earned a well-deserved sentence of life in prison without parole,” Marshall said in a statement.

April 27, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"The Fate of Lethal Injection: Decomposition of the Paradigm and Its Consequences"

The title of this post is the title of this new article by multiple authors now available on SSRN.  Here is its abstract:

This article examines the use of lethal injection from 2010-2020.  That period marks the "decomposition" of the standard three drug protocol and the proliferating use of new drugs or drug combinations in American executions.  That development is associated with an increase in the number and type of mishaps encountered during lethal injections.  This article describes and analyzes those mishaps and the ways death penalty jurisdictions responded, and adapted, to them.  It suggests that the recent history of lethal injection echoes the longer history of the death penalty.  When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing methods.  When tinkering failed, they adopted allegedly more humane execution methods.  When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty from public view.  New drugs and drug combinations may have allowed the machinery of death to keep running.  New procedures may have given the lethal injection process a veneer of legitimacy.  But none of these recent changes has resolved its fate or repaired its vexing problems.

April 27, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Detailing the "nightmare" following the Supreme Court's McGirt ruling

The Washington Times has this lengthy new article discussing the fallout of the Supreme Court's notable ruling last summer in McGirt v. Oklahoma under the headlined, "'A nightmare': Supreme Court ruling upends Oklahoma prosecutions of American Indians."  Here are excerpts:

A Supreme Court ruling that bars state prosecutions of American Indians in Oklahoma for crimes on tribal land has led to a wave of appeals from convicts, a rising backlog of cases in federal and tribal courts, and an accused serial rapist walking away free on a technicality. “If you were going to make a nightmare, you couldn’t make one better than this,” said Scott Walton, sheriff in Rogers County, Oklahoma.

Before the high court handed down its ruling in July, the U.S. attorney’s office for the Northern District of Oklahoma prosecuted about 240 cases a year. The office now is indicting about 100 cases a month, about five times more, as the federal government picks up cases formerly in the state’s jurisdiction.

In the past eight months, the U.S. attorney’s office has accepted 600 major felony cases for prosecution and sent 830 less-serious cases to tribal courts. Some prosecutions are falling through the cracks because of statutes of limitation for some federal crimes — a legal hurdle state prosecutors didn’t face.

“There is a small percentage of cases that cannot be prosecuted due to lack of/loss of evidence or due to the federal statute of limitations,” said a spokesperson for the U.S. attorney’s office in the Northern District of Oklahoma. “Our office continues to work closely with district attorneys and tribal attorneys general to ensure a seamless transfer of cases for prosecution.”

For minor crimes that carry maximum prison sentences of three years or less, tribal courts have the authority to prosecute defendants.  Critics say the Supreme Court’s 5-4 ruling in McGirt v. Oklahoma left certain crimes such as larceny, which can carry a five-year sentence, in limbo between tribal courts and federal courts. Another concern is that federal prosecutors will focus on violent crimes such as rape and murder, leaving home burglary and others unresolved.  “Those cases just won’t get prosecuted,” Sheriff Walton said.

The McGirt case has major implications in Oklahoma because about half of the land in the state is considered Indian country, covering dozens of tribes.  The city of Tulsa, which has a population of more than 400,000, sits predominantly on a reservation.  The high court’s ruling, which sent shock waves through the state, overturned the conviction of Jimcy McGirt, an American Indian charged with sexually abusing a 4-year-old girl in 1996.

The court’s majority agreed with McGirt’s argument that the state didn’t have jurisdiction to prosecute him because the crime took place on a reservation and he is American Indian.  The justices said Congress never disestablished the 1860s-era boundaries of the Muscogee (Creek) Nation’s reservation.  Justice Neil M. Gorsuch, a Trump appointee, joined four Democratic appointees, including Ruth Bader Ginsburg, in overturning McGirt’s conviction....

The U.S. attorney’s office for the Eastern District of Oklahoma, like the Northern District, has had a surge in cases. In one week this month, the office returned 90 felony indictments — more than the office normally brings in a full calendar year.  An internal source said the U.S. attorney’s office for the Eastern District could be handed 200 murder cases to try by the end of May.  “It is a conundrum without certainty,” the source told The Washington Times, speaking on the condition of anonymity. “We need some sort of legislative fix.

Many convicted felons are citing the McGirt case in appeals in an effort to overturn their sentences.  Robert Gifford, a lawyer who works with tribes in Oklahoma, dismissed law enforcement’s concerns. He said most accused felons will be prosecuted again.  “They are portraying it that these people are walking free, but most of the major cases are being picked up federally,” he said.  “Any major crimes would go to the U.S. attorney’s office.”

Prior related posts:

April 27, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

DEPC and NASC present "Justice Counts: Using Data to Inform Policy and Bolster Public Safety"

NASC-Workshop-Series-May-4_for-web-and-email2I am pleased to report that next week, the Drug Enforcement and Policy Center (DEPC) is kicking off its 2021 Sentencing Workshop Series in collaboration with National Association of Sentencing Commissions (NASC) with a terrific event titled "Justice Counts: Using Data to Inform Policy and Bolster Public Safety."  This is how this event is described on this page (where you can register):

Please join the National Association of Sentencing Commissions and the Drug Enforcement and Policy Center for a series of virtual sentencing workshops that bring together leaders from sentencing commissions, the judiciary, and academia.

Justice Counts: Using Data to Inform Policy and Bolster Public Safety.

Tuesday, May 4, 2021 at 12–1 p.m. CDT / 1–2 p.m. EDT | Zoom

This moderated panel discussion will focus on a new national initiative designed to help states make criminal justice data more accessible, clear, and usable for policymakers.  Backed by a coalition of 21 national partner organizations and funded by the U.S. Department of Justice’s Bureau of Justice Assistance, Justice Counts brings together state and local leaders to reach consensus about a limited set of criminal justice metrics that leaders can use to inform budget and policy decisions. The initiative also includes a scan of public, aggregate-level criminal justice data and identifies existing gaps in data reporting.

Panelists:

Megan Grasso, Deputy Program Director, The Council of State Governments Justice Center

Sarah Lee, Policy Analyst, The Council of State Governments Justice Center

Carl Reynolds, Senior Legal and Policy Advisor, The Council of State Governments Justice Center

Ken Sanchagrin, Executive Director, Oregon Criminal Justice Commission

Scott Schultz, Executive Director, Kansas Sentencing Commission

Moderator:

Bennet Wright, Executive Director, Alabama Sentencing Commission

Resources:

Justice Counts website
Justice Counts project overview document

April 27, 2021 in Data on sentencing, Detailed sentencing data | Permalink | Comments (0)

Monday, April 26, 2021

"Handling Aggravating Facts After Blakely: Findings From Five Presumptive-Guidelines States"

The title of this post is the title of this great new paper authored by Nancy King ow available va SSRN. Here is its abstract:

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range.  Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice.  This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

April 26, 2021 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Some death penalty news and notes from around the USA

I have noticed a number of notable recent new press pieces about death penalty issues, and I figured a round up was in order: 

From the AP, "MO Supreme Court continues death penalty trial despite positive COVID-19 cases"

From the Canton Repository, "Canton man's new mission: Eliminating Ohio's death penalty"

From CNN, "Biden vowed to end the death penalty. Activists are demanding action as he nears the 100-day mark"

From Nevada Public Radio, "Will Nevada Abolish The Death Penalty?"

From the Tennessean, "Tennessee legislature: Courts allowed to reconsider death sentences over intellectual disability appeal"

April 26, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Andrea Fenster and Margo Schlanger. Here is how it gets started:

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act.  The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits.  For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies.

When the PLRA was being debated, lawmakers who supported it claimed that too many people behind bars were filing frivolous cases against the government.  In fact, incarcerated people are not particularly litigious. Instead, they often face harsh, discriminatory, and unlawful conditions of confinement — and when mistreated, they have little recourse outside the courts. And when incarcerated people do bring lawsuits, those claims are extremely likely to be against the government since nearly all aspects of life in prison are under state control.  While prison and jail officials may occasionally feel overwhelmed by these lawsuits, cutting off access to justice ensures only that civil rights violations never reach the public eye, not that such violations never occur.

The PLRA should be repealed.  It was bad policy in the 1990s — an era full of unfair, punitive, and racist criminal justice laws — and allowing it to continue today is even worse policy.

April 26, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (4)

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

April 26, 2021 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, April 25, 2021

"A Primer on Risk Assessment for Legal Decisionmakers"

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

This primer is addressed to judges, parole board members, and other legal decisionmakers who use or are considering using the results of risk assessment instruments (RAIs) in making determinations about post-conviction dispositions, as well as to legislators and executive officials responsible for authorizing such use.  It is meant to help these decisionmakers determine whether a particular RAI is an appropriate basis for legal determinations and whether evaluators who rely on an RAI have done so properly.  This primer does not take a position on whether RAIs should be integrated into the criminal process.  Rather, it provides legal decision-makers with information about how RAIs are constructed and the types of information they provide, with the goal of facilitating their intelligent selection and use.

April 25, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, April 24, 2021

Third Circuit panel explores curious loss calculations in federal fraud guidelines

A helpful reader made sure I did not miss the interesting Third Circuit panel ruling this past week in US v. Kirschner, No. 20-1304 (3d Cir. April 22, 2021) (available here), discussing loss calculations under the fraud guidelines. There are lots of element to the Kirschner opinion, but the introduction provides an effective overview:

In 2018, Jonathan Kirschner pleaded guilty to one count of impersonating an officer acting under the authority of the United States and one count of importing counterfeit coins and bars with intent to defraud.  At sentencing, the District Court applied to Kirschner’s sentence three enhancements pursuant to the U.S. Sentencing Guidelines — a 2-level enhancement because Kirschner’s fraud used sophisticated means; another 2-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the “loss” attributable to his scheme was greater than $25 million but less than $65 million, even though it grossed only about one one-thousandth of that.

Kirschner appeals the District Court’s judgment of sentence and challenges the three enhancements it applied.  For the reasons that follow, we will vacate Kirschner’s sentence and remand for resentencing.  While the District Court was well within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, we conclude it clearly erred in applying the 22-level enhancement for loss, and we cannot say that the error was harmless.

I have always thought the federal fraud guideline deeply misguided due to commentary basing offense severity calculations on the greater of intended or actual loss (and the guideline is also deeply problematic for placing extreme emphasis on "loss" and by only requiring proof by a preponderance).  In this case, a focus on intended loss meant a guy who netted only about $30,000 selling fake goods when caught was sentenced as if he had netted $36 million! 

Ultimately, the panel here concluded intended loss was not subject to the "deeper analysis" needed to justify the district court's calculation.  But, for those following broader debates over the basic validity of guideline commentary, the panel had this interesting aside:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

This kind of aside reinforces my sense — or perhaps I should just say my hope — that it is only a matter of time before the US Supreme Court will consider, in some context, the validity of guideline commentary that arguably “sweeps more broadly than the plain text" of the guideline.

April 24, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Rounding up some early (mostly critical) commentary on Jones

I shared in this post yesterday some of my early thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though disappointed by the outcome, my long-standing concerns with the Supreme Court's jurisprudence in this arena (as discussed in pieces here and here) perhaps led me to be not too startled by the Court's work.  But, as evidenced by some of the commentary I have seen about Jones in the last few days, it seems many are quite aggrieved.  Here is an abdridged round up: 

From Josh Blackman, "Conservative Justices Do Not Need To Apologize For Making Socially-Conservative Rulings; I'm looking at you Justice Kavanaugh."

From Rory Fleming, "The Supreme Court’s Abhorrent Decision to Back Life-Without-Parole for Kids"

From Chris Geidner, "Kavanaugh just erased years of precedent to keep kids in jail forever; The Court's conservative wing will now let kids spent their lives behind bars."

From Ruth Marcus, "At the Supreme Court, a tale of two Bretts"

From John Pfaff, "It is ludicrous for the Supreme Court to say children are irredeemable"

From Mark Joseph Stern, "Brett Kavanaugh’s Opinion Restoring Juvenile Life Without Parole Is Dishonest and Barbaric"

From Elliot Williams, "Supreme Court's staggering deviation from precedent"

April 24, 2021 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Housing the Decarcerated"

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

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises — the lack of housing for the recently decarcerated.  Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated.  At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country.  The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing.  The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker.

The culture of exclusion is arbitrated by local housing authorities and works on three levels — eligibility, enforcement and set asides.  As a result, formerly incarcerated persons are often rejected outright during the application process.  In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. 

This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion.  In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan.  Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated.  Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.

April 24, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, April 23, 2021

FAMM urges federal BOP to publish memos with home confinement criteria

In this post a few days ago, I asked "Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?". I still do not have an answer to this question, but I see that Kevin Ring at FAMM is hoping to get even more from the BOP via this new letter that starts and ends this way:

I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility critera for CARES Act home confinement.  The BOP’s failure to do so has created uneccessary confusion and frustration for incarcerated people and their families....

Surviving the past 13 months during the spread of COVID-19 has been extraordinarily difficult for people in prison and their loved ones at home.  Please do not add to their hardship by keeping them in the dark about recent and important BOP policy changes that might affect them.

Prior related post:

April 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

A few first thoughts on Jones and juve LWOP

Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices.  Here are some of these first thoughts:

1. I have always seen Montgomery as a somewhat clumsy rewrite and extension of Miller (as I discussed in this short piece), and I am not surprised that a more conservative Court has now stressed the importance of state authority to implement Miller without further constitutional elaboration of what the Jones majority calls "particular policy approaches" to juvenile sentencing.  Because I have long viewed all LWOP sentences, for offenders of any age, as poor policy and constitutionally suspect on various grounds, I am disappointed  the Court now has only three votes to embrace and further extend Mongtomery's extension of MIller.  But since a majority of current Justices now think the Constitution readily permits the sentencing of juveniles to die in prison, it readily follows that a majrity of Justices are disinclined to read substantive constitutional limitations into how this such sentencing takes place in the states. 

2. Speaking of the Justices, this ruling (and I fear others to come) may prevent me from wishfully thinking the current Supreme Court is still inclined to be pro-defendant on big sentencing issues.  For a good number of years before recent changes in personnel, criminal defendants got a whole lot of very big wins from SCOTUS on sentencing issues (despite still often losing in circuit courts and elsewhere).  But this Jones ruling is a clear indication that replacing Justices Scalia, Kennedy and Ginsburg with Justices Gorsuch, Kavanaugh and Barrett likely means the era of big defense wins in a number of big sentencing cases may be over.  Particularly notable when thinking about the overall Court is how the new Justices may have swayed Chief Justice Roberts, who was with the old majority in Montgomery to extend Miller for the benefit of juveniles, but now is in the Jones majority trmming back the protections of the Eighth Amendment.

3. Speaking of the Chief Justice, I have long hoped that his discussion of as-applied Eighth Amendment claims in Graham might spur many more as-applied Eighth Amendment challenges (especially for cases inolving older teens).  Against that backdrop, I found interesting this statement by the Court toward the end of its Jones opinon: "Moreover, this case does not properly present — and thus we do not consider — any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence." This sentence suggests that Brett Jones — as well as every other juvenile sentenced to LWOP in a discretionary scheme — still can and certainly should argue that the particular facts of his case make LWOP unconstitutional as applied.  If future lower court litigation involving Brett Jones or other juveniles might help produce a meaningful as-applied Eighth Amendment jursprudence, perhaps such a jurisprudence could possibly provide some additional protections for a range of persons subject to a range of extreme sentences.

4.  Speaking of additional protections for a range of persons, it is important to remember that even if Jones was resolved in favor of the defendant, the Eighth Amendment would still have been interpreted to provide only the most limited of protections to the most limited set of juveniles convicted of murder.  A lot more than a robust Eighth Amendment jurisprudence is needed to have a real impact on modern mass incarceration and extreme punishments, and it will always be up to legislatures and executive branch officials to enact sounder sentencing laws and apply them in a more humane manner.  Over the last decade, we have, encouragingly, seen many more legislatures and prosecutors do a lot better on sentencing policy and practice.  The Jones ruling is perhaps ultimately just another reminder that steady policy work, rather than sporatic constitutional litigation, remains the surest path to an improved criminal justice system.

April 23, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 22, 2021

"Race-Based Remedies in Criminal Law"

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

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system.  Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety.  As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions.  Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge.  The apprehension is understandable.  Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies.  There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges.  Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms.  To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.

The Article finds reasons to be optimistic about how race-based remedies might fare within the criminal-system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders.  Within this unique context, the Article provides a template for a race-based approach that potentially survives an Equal Protection challenge.

April 22, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

"A Courts-Focused Research Agenda for the Department of Justice"

The title of this post is the title of this notable new Brennan Center report.  Here is its introduction:

Millions of individuals interact with the U.S. criminal and civil legal system every year. Many of them look to the courts to defend their rights and ensure fair outcomes — and all too often, courts are falling short.

As a candidate, President Biden committed to combatting mass incarceration, ending the criminalization of poverty, rooting out racial disparities, and refocusing our criminal and civil legal systems on the key principles of equality, equity, and justice. State and federal courts are critical to achieving these goals, but there is much that we don’t know about how they currently function and where reform is most acutely needed.

In order for the Department of Justice (DOJ) to effectively support states, local jurisdictions, tribal governments, territories, and the federal government in refashioning our courts into more just institutions, research and data are urgently required.

There must be an understanding not only of who is entering the court system, but why they are brought into it, and what their experiences illustrate about our vast system of local, state, and federal courts. For example, the Biden administration has emphasized its intention to end the practice of incarcerating people for their inability to pay court debt, yet we still know very little about how these and other predatory court practices function across the country. The Covid-19 pandemic prompted an unprecedented experiment with remote court proceedings in jurisdictions across the country, but we still know very little about how remote court impacts access to justice and the fairness of proceedings.

President Biden has also emphasized the importance of racial, ethnic, gender, and professional diversity on the bench — including nominating judges who bring diversity to the bench. But while the judiciary publishes diversity data about Article III judges, we lack basic information about the demographics or professional experience of many judges in state and Article I federal courts. These are just a few of the data and research gaps that make our courts problematically opaque.

Although just scratching the surface, we offer some recommendations for the Office of Justice Programs (OJP) and National Institute of Justice (NIJ) to collect additional data and perform research to better understand how our courts do or don’t work for millions of Americans, as well as setting forth a research agenda that could shed more light on how to improve our nation’s vast system of local, state, and federal courts. 

April 22, 2021 in Criminal justice in the Biden Administration, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

SCOTUS affirms juve LWOP sentence, 6-3, in Jones v Mississippi

I am on the road today, and so I am not that surprised the Supreme Court has handed down the big sentencing opinion I have been awaiting all Term.  I hope to comment later today.

UPDATE Thanks to airport wifi, I can now provide this link to the full opinion in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021).  Here is how Justice Kavanaugh's opinion for the Court begins

Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.  In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18.  The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.

Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller.  Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.  And Jones says that the trial judge did not make such a finding in his case.

Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents.  In Miller, the Court mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence.  Id., at 483.  And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument.  We affirm the judgment of the Mississippi Court of Appeals.

Justice Sotomayor's dissent, which is joined by Justices Breyer and Kagan, starts this way:

Today, the Court guts Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S., at 479, he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in Miller and MontgomeryMiller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S., at 195 (quoting Miller, 567 U.S., at 479–480).  Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S., at 210, but it is far from sufficient.  A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence.  Miller, 567 U.S., at 480.  The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery, 577 U.S., at 208 (internal quotation marks omitted).

Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11.  Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none.  Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19.  The Court is fooling no one.  Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.

April 22, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, April 21, 2021

"Assessing the Mortality Impact of the COVID-19 Pandemic in Florida State Prisons"

The title of this post is the title of this notable new paper by multiple authors with this abstract:

Background

The increased risk of COVID-19 infection among incarcerated individuals due to environmental hazards is well known and recent studies have highlighted the higher rates of infection and mortality prisoners in the United States face due to COVID-19.  However, the impact of COVID-19 on all-cause mortality rates in incarcerated populations has not been studied.

Methods

Using data reported by the Florida Department of Corrections on prison populations and mortality events we conducted a retrospective cohort study of all individuals incarcerated in Florida state prisons between 2015 and 2020.  We calculated excess deaths by estimating age-specific expected deaths from mortality trends in 2015 through 2019 and taking the difference between observed and expected deaths during the pandemic period.  We calculated life table measures using standard demographic techniques and assessed significant yearly changes using bootstrapping.

Findings

The Florida Department of Corrections reported 510 total deaths from March 1, 2020 to December 31, 2020 among the state prison population.  This was 42% higher (rate ratio 1.42, 95% CI 1.15 to 1.89) than the expected number of deaths in light of mortality rates for previous years.  Reported COVID-19 deaths in a month were positively correlated with estimated excess deaths (80.4%, p <.01).  Using age-specific mortality estimates, we found that life expectancy at age 20 declined by 4 years (95% CI 2.06-6.57) between 2019 and 2020 for the Florida prison population. 

Interpretation

The Florida prison population saw a significant increase in all-cause mortality during the COVID-19 pandemic period, leading to a decrease in life expectancy of more than four years.  Life years lost by the Florida prison population were likely far greater than those lost by the general United States population, as reported by other studies.  This difference in years lost highlights the need for increased interventions to protect vulnerable incarcerated populations during pandemics.

April 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Split Eleventh Circuit panel rejects equal protection challenge to illegal reentry guideline

Yesterday the Eleventh Circuit handed down an interesting split panel opinion in US v. Osorto, No. 19-11408 (11th Cir. April 20, 2021) (available here). These paragraphs from the start of the majority opinion provides a flavor for the issues and the court's holding:

Defendant-Appellant Juan Carlos Osorto was convicted of illegal reentry after the 2016 Guidelines went into effect.  Because he had committed other offenses both before his original deportation and after it, but before his current illegal-reentry offense, he received offense-level increases under both subsections 2L1.2(b)(2) and (3).  He now challenges both subsections as violations of, among other things, his equal-protection rights.  Osorto (and the Dissent) argue that these guidelines, which apply to only illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice — once in the offense level and a second time in the Guidelines’ criminal-history calculation. Meanwhile, Osorto contends, citizens cannot illegally reenter the United States, and generally, no guidelines for other offenses count prior convictions in both the offense-level and criminal-history calculations.  So in Osorto’s view, subsections 2L1.2(b)(2) and (3) unlawfully discriminate against noncitizens.

We disagree.  First, Osorto’s challenge to § 2L1.2(b)(2) is foreclosed by our binding precedent in the form of Adeleke.  Second, Osorto (and the Dissent) consider the wrong universe of individuals.  Subsections 2L1.2(b)(2) and (3) do not apply to all noncitizens convicted of any crime in the United States; rather, they apply to only those noncitizens who both have illegally reentered the United States and have been convicted of other crimes.  This is important because, third, through § 1326(b), Congress has determined that illegally reentering the United States after being deported following conviction on another crime is a more serious offense than simply illegally reentering the United States, and that conduct should be deterred.  The challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b).  Fourth, Congress has entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and appropriately punishes culpability and risk of recidivism — the interests the Sentencing Commission cited in issuing the challenged guidelines. Finally, subsections 2L1.2(b)(2) and (3) are rationally related to the Commission’s stated interests in issuing them.  So after careful consideration, and with the benefit of oral argument, we must uphold the guidelines at issue and affirm Osorto’s sentence.

Here is part of the start of the dissenting opinion by Judge Martin:

Mr. Osorto challenges Guideline § 2L1.2(b)(3) on equal protection grounds.  This Guideline makes for tougher sentences for defendants who commit a designated offense after reentering the United States without authorization.  See USSG § 2L1.2(b)(3).  This list of designated offenses does not include the offense of unauthorized reentry itself.  See id. Meanwhile, a defendant is already punished for both the unauthorized reentry and any other offense that leads to the increased punishment imposed by § 2L1.2(b)(3) on account of the calculation of a defendant’s criminal history under the Sentencing Guidelines.  See USSG § 4A1.1(b).  The result is that any offense committed after unauthorized reentry is double-counted for noncitizens in their Guideline calculation based on little more than their immigration status.  Sentencing Guideline § 2L1.2(b)(3) therefore subjects noncitizen defendants to more severe punishment than citizens who commit the same crime.  Mr. Osorto argues that this more severe punishment imposed upon him because he is a noncitizen violates his Fifth Amendment right to equal protection of the laws.  U.S. Const. Amend. V; see United States v. Windsor, 570 U.S. 744, 774, 133 S. Ct. 2675, 2695 (2013) (“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws”).  I believe he is right.

April 21, 2021 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Notable new US Sentencing Commission primers on federal crime victim rights

The US Sentencing Commission has just released a couple of new primers on crime victims' right in the federal criminal justice system. Here are links to USSC pages about the short reports and descriptions:

Crime Victims' Rights

(April 2021) This primer provides a general overview of crime victims’ rights under the Crime Victims’ Rights Act (“CVRA”), as described in 18 U.S.C. § 3771, the related provisions of the Mandatory Victim Restitution Act (“MVRA”) and the Victim and Witness Restitution Act (“VWRA”), and the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. The Sentencing Guidelines implement the CVRA through USSG §6A1.5 and the related restitution provisions through USSG §§5E1.1 and 8B1.1.  Although the CVRA applies broadly to pretrial, trial, sentencing, and post-sentencing proceedings, this primer focuses primarily on its application to sentencing and post-sentencing issues, including revocations of probation, supervised release, habeas proceedings, and parole proceedings.  This primer is not intended as a comprehensive compilation of case law or as a substitute for independent research and primary authority.

Economic Crime Victims

(April 2021) This primer provides a general overview of selected guideline issues related to victims in offenses sentenced under §2B1.1 (“Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud or Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States”).  Although the primer identifies some of the relevant cases and concepts, it is not intended as a comprehensive compilation of the cases or analysis related to these issues.

April 21, 2021 in Advisory Sentencing Guidelines, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)