Sunday, July 25, 2021

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

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

A few of many prior related posts:

July 25, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Interesting review of African (and global) trends in capital punishment abolition

The New York Times has this interesting new article on capital punishment around the world under the headline "One by One, African Countries Dismantle Colonial-Era Death Penalty Laws."  Here are excerpts:

Lawmakers in Sierra Leone voted unanimously on Friday to abolish the death penalty, a momentous step that made the West African country the 23rd on the continent to prohibit capital punishment.

The decision was one more step in a long-sought goal of civil society organizations and legal practitioners who see the death penalty as a vestige of Africa’s oppressive colonial history.  “This is a horrible punishment and we need to get rid of it,” said Oluwatosin Popoola, a legal adviser at the rights group Amnesty International, a leading critic of capital punishment.

A vast majority of the 193 member states of the United Nations have either abolished the death penalty or do not practice it.... The vote in Sierra Leone came against the backdrop of a steady march in Africa to discard brutal laws imposed by past colonial masters.  In April, Malawi ruled the death penalty unconstitutional.  In May of 2020, Chad did the same. Nearly half of Africa’s 54 independent countries have abolished the punishment, more than double the number from less than two decades ago.

While death sentences and executions have declined globally in recent years, they do not necessarily reflect the growing number of countries that have banned capital punishment.  At least some of the declines are attributable to the Covid-19 pandemic, which slowed or delayed judicial proceedings in many countries.  And in some, like the United States, federal executions were ramped up in 2020.

As in previous years, China led the 2020 list of countries that execute the most people, killing thousands, according to Amnesty International, which compiles capital punishment statistics.  The exact figures for China are not known, as its data remains a state secret.  Next in 2020 came Iran, which executed at least 246 people, and then Egypt, Iraq, Saudi Arabia, and in sixth place the United States, with 17 executions.  Most of the American executions were of federal prisoners in the last six months of President Donald J. Trump’s term, a turnaround after years of an informal moratorium.

The legislators in Sierra Leone on Friday replaced the death sentence with a maximum life sentence for certain crimes, including murder and treason.  This means that judges will have the power to consider mitigating factors, such as whether the defendant has a mental illness.  They would have had no such flexibility if the lawmakers had voted instead to replace the death penalty with a mandatory life sentence....

Sierra Leone is the first of the English-speaking West African countries to abolish the punishment.  A decade ago, a commission in Ghana recommended abolition, but in recent years efforts have stalled.

In Nigeria, Africa’s most populous country, at least 2,700 people are on death row — the highest number by far on the African continent. Gambia had been on track to abolish the death penalty last year, when a new Constitution was drafted. But it was rejected by Parliament. Still, Gambia’s president has made some significant moves away from capital punishment, Mr. Popoola said.  These are all countries that, like Sierra Leone, obtained independence from the Britain in the late 1950s and 1960s — around the same time as that colonial power was carrying out its own last executions.

July 25, 2021 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (0)

"The Boundary Problem of Rights Restoration"

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

By conditioning restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically — profoundly altering the shape of the American electorate. Courts have universally upheld the practice by treating the conferral of political rights to nonmembers of the political community as an exercise of legislative grace subject to few constraints, while critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to a first-order question that has gone overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood?  The conventional position, which I call “depoliticization,” imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination — not the wholesale elimination — of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty.  It follows that rights restoration is not the conferral of a new statutory benefit to a political outsider, as courts have assumed, but instead marks the endpoint of state-sustained subordination.

Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment, resolves a number of doctrinal contradictions, and — most critically for future litigation challenges — sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes and debtors’ prisons.  By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts currently underway outside the courts.

July 25, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, July 24, 2021

"Talking Back in Court"

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

People charged with crimes often speak directly to the judge presiding over their case.  Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers.  While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court.  In individual cases, talking back could result in fairer outcomes.  On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power.  While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly.  Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice.  The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture.  Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

July 24, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Friday, July 23, 2021

Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform

The news to start this work week that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would be returned to prison after the pandemic has likely contributed to the end of this work week bringing a number of effective commentaries rightly asserting that Prez Biden continues to come up short on criminal justice issues.  Notably, these commentary are coming from across the political spectrum as evidenced by these pieces:

From Samantha Michaels at Mother Jones, "Biden Said He’d Cut Incarceration in Half. So Far, the Federal Prison Population Is Growing."

From Lars Trautman at The Washington Examiner, "Biden’s criminal justice inaction is nothing but malarkey"

I recommend both of these shorter pieces, but I especially want to encourage everyone to read this lengthy Washington Post magazine commentary by Piper Kerman headlined "She accidentally provided the ‘Lose Yo Job’ soundtrack to Biden victory memes this fall.  He could learn a lot from hearing her story."  In fact, we can all learn a lot from her story, as brilliantly told and contextualized by Piper Kerman, and her piece is a useful reminder that Vice-President Harris ought not be left out of discussions and criticisms of the tepid criminal justice reform efforts of the Biden Administration to date.

July 23, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

July 23, 2021 in Almendarez-Torres and the prior conviction exception, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Thursday, July 22, 2021

Noticing Biden Administration's withdrawal of pursuit of the death penalty in many cases

This new New York Times article, headlined "U.S. Won’t Seek Death Penalty in 7 Cases, Signaling a Shift Under Biden," reports on a notable set of pending case developments suggesting one way that the Biden Administration is making good on its stated antipathy toward capital punishment.  Here are excerpts:

One man was charged in Orlando, Fla., with kidnapping and fatally shooting his estranged wife. Another man was indicted in Syracuse, N.Y., in the armed robbery of a restaurant and the murders of two employees. And a third man was charged in Anchorage with fatally shooting two people during a home invasion.

Those cases and four others prosecuted in federal courts around the country all had a common theme — they were among cases in which the Justice Department under President Donald J. Trump directed federal prosecutors to seek the death penalty if they won convictions.

But now, under a new presidential administration, the Justice Department has moved to withdraw the capital punishment requests in each of the seven cases. The decisions were revealed in court filings without fanfare in recent months. The decision not to seek the death penalty in the cases comes amid the Biden administration’s broad rethinking of capital punishment — and could signal a move toward ending the practice at the federal level....

Some legal experts said it was too early to tell what the seven scattered cases signified, and one lawyer suggested Mr. Garland could have been even more assertive. “I think it’s a good and important step by the attorney general, but there’s no question that it’s not far enough,” said Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. “President Biden should issue a much broader moratorium,” Ms. Stubbs added. “He should ask for a moratorium on all death penalty prosecutions.”

But Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit group in Sacramento, Calif., that supports crime victims and the death penalty, was critical of Mr. Garland’s decisions in the seven cases. “The families of murder victims are clearly not included in the calculus when ordering U.S. attorneys not to pursue capital punishment in the worst cases,” he said.

Under Mr. Garland, the Justice Department has continued to fight the appeal of the death sentence imposed on Dylann Roof, the white supremacist who murdered nine Black churchgoers in Charleston in 2015. And in the case of Dzhokhar Tsarnaev, who was convicted of helping to carry out the 2013 Boston Marathon bombing, which killed three people and injured more than 260, the Justice Department has asked the Supreme Court to reinstate the death penalty, which had been overturned on appeal.

July 22, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Seventh Circuit panel states (in dicta?) that vaccine availability "makes it impossible" for COVID risks to create eligibility for compassionate release

The Seventh Circuit yesterday released a short panel opinion affirming the denial of a compassionate release motion in US v. Broadfield, No. 20-2906 (7th Cir. July 21, 2021) (available here) (Hat tip: How Appealing).  The opinion has a number of notable passages that make this ruling a useful read in full for those working in this arena, but the closing paragraph seemed especially worth highlighting here:

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends.  But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order.  A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.

This final paragraph seems to me to be dicta (though what precedes it might lead some to conclude it is part of the holding).  I suspect the final clause will garner considerable attention no matter how characterized.  Critically, by using the phrase "the vast majority of prisoners," this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an "extraordinary and compelling" reason for compassionate release.  Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.

July 22, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

BJS releases new reports on "Correctional Populations in the United States, 2019" and "Probation and Parole in the United States, 2019"

Justice Department's Bureau of Justice Statistics always produces terrific reports on national criminal justice realities, though there is necessarily a time lag in the data reported.  But given they ways the COVID pandemic has changed (and not changed) our criminal justice systems, I think it is especially timely that BJS has just released to big new reports on the state of US correctional populations at the end of 2019, just before the pandemic hit.  Via email, I got news and short descriptions of these new BJS reports:

The Department of Justice’s Bureau of Justice Statistics today released two reports that present statistics on adults in the U.S. correctional system. Correctional Populations in the United States, 2019 – Statistical Tables provides data on both incarcerated persons and those on probation or parole, while Probation and Parole in the United States, 2019 focuses on persons under community supervision on probation or parole.

Correctional Populations in the United States, 2019 – Statistical Tables presents statistics on persons supervised by U.S. adult correctional systems at year-end 2019, including those supervised in the community on probation or parole and persons incarcerated in state or federal prison or local jail.  It describes the size and change in the total correctional population from 2009 to 2019.  Findings are based on various BJS data collections, including the Annual Probation Survey, Annual Parole Survey, Annual Survey of Jails, Census of Jails, National Prisoner Statistics program and Survey of Jails in Indian Country.

Probation and Parole in the United States, 2019 presents national data on adult offenders under community supervision on probation or parole in 2019.  It includes characteristics of the population such as sex, race or Hispanic origin, and most serious offense.  The report details how offenders move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2019 Annual Probation Survey and Annual Parole Survey.

July 22, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

At a time of problematic and often ugly partisanship inside the Beltway, I have continued to believe and hope that a number of federal sentencing reforms could and should still be able to secure significant bipartisan support.  This belief was reinforced yesterday when the House Judiciary Committee voted 36 to 5 to advance the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  Excitingly, not only does this bill reduce crack statutory sentences to the level of powder cocaine offenses, it also provides for all previously convicted crack offenders to obtain a resentencing.  (Recall that neither the Fair Sentencing Act of 2010 nor the FIRST STEP Act of 2018 included full retroactivity for the sentencing reductions in those reform bills.)

I want to believe that the overwhelming vote in support of the EQUAL Act in the House Judiciary Committee means that a vote a passage by the full House will be coming soon.  I also want to believe that the bill, which also has bipartisan Senate support, could move efficiently through the upper chamber and become law this year.  But, because the politics and ways of Congress are always mysterious, I am not assuming passage is a sure thing and I have no idea what the timeline for the bill's potential progress will be going forward.  All I know is that it is now more than a quarter-century since the US Sentencing Commission first explained to Congress why a big crack/powder sentencing difference was unjustified and unjust, so the EQUAL Act cannot become law too soon and is way too late.  But better late than never, I still hope.

Notably, we are already approaching three years since passage of the FIRST STEP Act and there is yet to be a next step.  Though I would like to see many more statutory sentencing reform steps from Congress that go far beyond the EQUAL Act, I still think reforms can and should be happy right now with even baby steps in the right direction from a divided Congress.  And,  critically, the EQUAL Act would be a consequential baby step: USSC data indicate that more than 8000 people are in federal prison for crack offenses now and that more than 100 people are sentenced on crack offenses each month.  So literally thousands of people will be impacted if the EQUAL Act becomes law, and then, if/when this reform is finally achieved, we can work on correcting the next and the next and the next injustice baked into federal sentencing law and practice. 

A few prior related posts:

July 22, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"The Limits of Retributivism"

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

"Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity.  They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments.  However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range.  To impose a sentence beyond this minimum would be cruel from a retributive perspective.  It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends.  Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.

July 22, 2021 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, July 21, 2021

Highlighting the drug war's continuing extraordinary toll on people of color

The AP has this lengthy new piece headlined "50-year war on drugs imprisoned millions of Black Americans."  I am a bit troubled by the use of the past tense in the headline because the casualties of the drug war continue to grow every minute of every day we rely on the criminal justice system to deal with drug issues. But, headline quibble aside, this extended AP piece is worth a full read, and here are excerpts:

Fifty years ago this summer, President Richard Nixon declared a war on drugs.  Today, with the U.S. mired in a deadly opioid epidemic that did not abate during the coronavirus pandemic’s worst days, it is questionable whether anyone won the war.

Yet the loser is clear: Black and Latino Americans, their families and their communities.  A key weapon was the imposition of mandatory minimums in prison sentencing.  Decades later those harsh federal and state penalties led to an increase in the prison industrial complex that saw millions of people, primarily of color, locked up and shut out of the American dream.

An Associated Press review of federal and state incarceration data shows that, between 1975 and 2019, the U.S. prison population jumped from 240,593 to 1.43 million Americans. Among them, about 1 in 5 people were incarcerated with a drug offense listed as their most serious crime.

The racial disparities reveal the war’s uneven toll. Following the passage of stiffer penalties for crack cocaine and other drugs, the Black incarceration rate in America exploded from about 600 per 100,000 people in 1970 to 1,808 in 2000.  In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242....

Although Nixon declared the war on drugs on June 17, 1971, the U.S. already had lots of practice imposing drug prohibitions that had racially skewed impacts. The arrival of Chinese migrants in the 1800s saw the rise of criminalizing opium that migrants brought with them. Cannabis went from being called “reefer” to “marijuana,” as a way to associate the plant with Mexican migrants arriving in the U.S. in the 1930s.

By the time Nixon sought reelection amid the anti-Vietnam War and Black power movements, criminalizing heroin was a way to target activists and hippies. One of Nixon’s domestic policy aides, John Ehrlichman, admitted as much about the war on drugs in a 22-year-old interview published by Harper’s Magazine in 2016.

Experts say Nixon’s successors, Ronald Reagan, George H.W. Bush and Bill Clinton, leveraged drug war policies in the following decades to their own political advantage, cementing the drug war’s legacy. The explosion of the U.S. incarceration rate, the expansion of public and private prison systems and the militarization of local police forces are all outgrowths of the drug war.

Federal policies, such as mandatory minimum sentencing for drug offenses, were mirrored in state legislatures.  Lawmakers also adopted felony disenfranchisement, while also imposing employment and other social barriers for people caught in drug sweeps.

The domestic anti-drug policies were widely accepted, mostly because the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming spike in homicides and other violent crimes nationwide.  Those policies had the backing of Black clergy and the Congressional Black Caucus, the group of African-American lawmakers whose constituents demanded solutions and resources to stem the violent heroin and crack scourges.

“I think people often flatten this conversation,” said Kassandra Frederique, executive director of the Drug Policy Alliance, a New York-based nonprofit organization pushing decriminalization and safe drug use policies. “If you’re a Black leader 30 years ago, you’re grabbing for the first (solution) in front of you,” said Frederique, who is Black.  “A lot of folks in our community said, ‘OK, get these drug dealers out of our communities, get this crack out of our neighborhood. But also, give us treatment so we can help folks.’” The heavy hand of law enforcement came without addiction prevention resources, she said.

July 21, 2021 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (0)

As we puzzle through gun violence spike, is it too soon to hope a decline is already starting?

German Lopez has this useful new piece at Vox headlined "Murders are up.  Crime is not.  What’s going on?".  I recommend the extended article in full and here are some excerpts (with my highlighting to help account for the optimism in my post title, and just a few of many helpful links retained):

Last year, the US saw the biggest increase in the murder rate in decades.  The estimated total number of homicides rose to levels not seen since the late 1990s, even as the overall crime rate declined.  So far, the spike has continued into 2021: Murders are up nearly 15 percent so far this year compared to the same period last year, based on data from US cities collected by crime analyst Jeff Asher.

That’s what we know. What we don’t really know yet is why....  Year-to-year fluctuations in crime and violence can and do happen. But the size of the murder spike has led to broader national attention.  The increase is now part of an ideological proxy war — leading to conflicting opinions even within political parties on what to do about the increase in murders, and plenty of finger-pointing over whether the pandemic, protests over police, or guns are to blame.

We don’t really know, with certainty, what’s behind the rise.  All three of those factors likely played a role.  And there may even be some unknown factor that researchers won’t notice for years; the theory that higher levels of lead in the environment caused higher crime and violence from the 1960s to 1990s took decades to get widespread national attention....

The increase in murder appears to be a uniquely American phenomenon.  While murder rates rose in some developed countries last year, like Canada and Germany, the increases are far below the double-digit spikes America is seeing. That’s especially notable because the United States already had a higher baseline of murders, after controlling for population.  Despite claims that Democratic mayors or progressive criminal justice policies are driving the increase, it also appears indifferent to the political party in charge: As Asher and criminal justice expert John Pfaff have shown, murder rates increased in cities run by Democrats and Republicans, progressive and not.

The good news is there is a lot more agreement among experts about how to bring down the spike than there is about what caused it.  But the best evidence suggests stopping murders in the short term will require more and better, though not necessarily more aggressive, policing — a controversial proposal on the left. “I know people don’t want to hear this, and I empathize with that,” Anna Harvey, a public safety expert at New York University, told me. “But at least as far as the research evidence goes, for short-term responses to increases in homicides, the evidence is strongest for the police-based solutions.”

The [murder spike] data is preliminary; final official numbers for 2020 will be out later this year.  But the findings have been backed by multiple sources, including the FBIAsherseparate reports from the Council on Criminal Justice, and the University of Pennsylvania–run website City Crime Stats.  A consistent finding in these analyses: The spike is truly national, showing up in every region of the country and most of the cities with available data.

Some other kinds of crime also increased, according to this early data, including shootings, aggravated assaults, and car thefts.  Still, violent crime in general went up at much lower rates, if at all, compared to murders, and overall crime declined, driven in part by a drop in the majority of property crimes.  The split between murder rates and crime rates might seem odd, but there’s good reason to believe the divergence is genuine and not an artifact of underreporting.  There were fewer opportunities to commit property crimes last year with businesses shut and people staying home....

Based on Asher’s analysis of major US cities, the murder spike has continued into 2021 but likely decelerated.  There also seems to be more variation: More cities, including Chicago, are reporting a decrease or at least no increase in murders so far this year....

The closest to a consensus I’ve been able to find in talking to experts about the cause of the murder spike: It’s complicated.  Experts have rejected some possibilities.  Given that murders rose in both Democrat- and Republican-run cities, as well as places that adopted criminal justice reforms and those that didn’t, partisanship and criminal justice reforms don’t seem to be a cause.  Three plausible explanations, none of which exclude the others, have come up repeatedly:

1) The Covid-19 pandemic....

2) The US protests over police brutality...

3) America’s gun problem....

Perhaps the best explanation: All of these factors played a role.  There are many ways all these explanations could have interacted.  As one example: Covid-19 and protests both fueled a sense that the social fabric was unraveling, and more people — particularly in the worst-off neighborhoods — felt they had to fend for themselves.  They equipped themselves with guns to act on their own if they felt a threat.  And this made any given conflict more likely to escalate to deadly violence.

I have been keeping a particular eye lately on this webpage in which Jeff Asher has compiled a "YTD Murder Comparison" for 73 cities.  On July 12 in this tweet, Asher noted that the "change in murder relative to last year is dropping in cities with data.  A few weeks ago it was +22%, last week it was +18%, now it's +16%.  Largely reflects cities entering the time last year when murder surged (murder is down in Chicago, for example)."  And, now of July 21, Asher's data shows we are under a 15% year-to-date increase, providing further reason to be hopeful that the homicide spike may already be ending. 

Of course, given last year's significant increases, just having little or no increases in murder is not something to celebrate robustly.  But if these encouraging trends continue and we end up seeing declines in homicides nationwide in the coming month, perhaps the criminology question could soon become what explains the end of the homicide spike starting in mid 2021 rather than what explains the spike starting in mid 2020.

July 21, 2021 in National and State Crime Data | Permalink | Comments (1)

"Prosecutorial Roles in Reducing Racial Disparities in the Justice System"

The title of this post is the title of this interesting new R Street report authored by Nila Bala, Casey Witte and Lars Trautman.  Here is its executive summary:

The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system.  In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences.  While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful.  With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities.  This paper examines the sources of racial disparities in the criminal justice system, the ways in which prosecutors may contribute to them and finally, actions that prosecutors can take to help reduce these disparities.  These recommendations include better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs and implementing algorithmic color-blind charging.

July 21, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, July 20, 2021

Helpful review of some modern US capital punishment realities

FT_21.07.15_DeathPenaltyFacts_2Over at the Pew Research Center, John Gramlich has this effective new piece headlined "10 facts about the death penalty in the U.S." In fact, many of the "facts" discussed in this article are facts about polling regarding the death penalty in the U.S. (which makes sense given Pew's recent poll work on this topic). Nevertheless, the piece is well worth a read in full, and here are a few of the highlights I though most bloggy-notable:

1. Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder....

5. Support for the death penalty is consistently higher in online polls than in phone polls. Survey respondents sometimes give different answers depending on how a poll is conducted. In a series of contemporaneous Pew Research Center surveys fielded online and on the phone between September 2019 and August 2020, Americans consistently expressed more support for the death penalty in a self-administered online format than in a survey administered on the phone by a live interviewer. This pattern was more pronounced among Democrats and Democratic-leaning independents than among Republicans and GOP leaners, according to an analysis of the survey results....

7. A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center. But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more.

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004)....

8. Death sentences have steadily decreased in recent decades. There were 2,570 people on death row in the U.S. at the end of 2019, down 29% from a peak of 3,601 at the end of 2000, according to the Bureau of Justice Statistics (BJS). New death sentences have also declined sharply: 31 people were sentenced to death in 2019, far below the more than 320 who received death sentences each year between 1994 and 1996....

9. Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to BJS and the Death Penalty Information Center. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed.

July 20, 2021 in Data on sentencing, Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (0)

"Building exits off the highway to mass incarceration: Diversion programs explained"

The title of this post is the title of this great new report authored by Leah Wang and Katie Rose Quandt for the Prison Policy Initiative. I recommend the report in full, and here is how it gets started:

Our nation’s mass incarceration crisis has led to far too many people locked up in jails and prisons.  As public outrage grows regarding the unfairness of the criminal justice system, counties and municipalities are adopting a wide range of programs that divert people out of the system before they can be incarcerated, pitching these as solutions to reduce the number of people in confinement.  But these programs are not all created equal, and the design and implementation of diversion can be wildly different in its impact on justice-involved people.

We envision the criminal justice system as a highway on which people are heading toward the possibility of incarceration; depending on the state or county, this highway may have exit ramps in the form of diversion programs and alternatives to incarceration.  Diversion is a broad term referring to any means of exiting the criminal justice system without a criminal conviction, while an alternative to incarceration can be offered to someone who has been convicted.

The further someone travels down the highway, the more collateral consequences they will experience: a police encounter that may turn dangerous; the trauma of being booked; their mugshot published on the internet; massive amounts of time spent away from work and family for jail time or court appearances; the financial burden of bail and court costs; and a criminal record that generates numerous other challenges like exclusion from the workforce, ineligibility for public benefits, disenfranchisement, and denial of the right to serve on a jury.

The earlier someone can take an exit ramp, the more devastating impacts they can avoid — and the more we can shrink the massive footprint of the criminal justice system.  This report provides a general overview of diversion and alternative-to-incarceration programs, and key differences in how they might alleviate (or complicate) someone’s experience going through the system.

In an ideal world, a community would implement all or almost all of these programs, to help divert people at every stage.  But when resources — financial or political — are limited, it is important that policymakers make choices that will have the largest impact.  While all diversions are better than incarceration, the most powerful are the earliest interventions (which we’re calling “Exit 1”) that prevent encounters with police and the criminal justice system in the first place.

July 20, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (0)

When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission?

As we officially hit six months into the Biden Administration, it seems a good time to express my frustration again that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for most of the last five years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional in terms of formal amendments or agendas in recent years.

In this post a few weeks ago, I highlighted that all the openings on the USSC provide the Biden Administration with an opportunity to appoint transformative commissioners who could make the USSC into a criminal justice reform leader for years to come.  And, as the title of this post suggests, I am now growing a bit frustrated that an array of criminal advocacy groups are not yet publicly advocating on this issue.  (I surmise there might be behind-the-scenes work afoot on this front.  I sure hope so.)  Notably, a broad range of advocacy groups have been actively urging Prez Biden to broadly and aggressively use his clemency powers for various sets of offenders.  Though I share an interest in seeing clemency powers revived, clemency is often just a "one-time" achievement.  Effective appointments to the US Sentencing Commission can provide the foundation for advancing badly needed structural and institutional federal sentencing reforms for a generation.

Justified concern for the home confinement cohort at risk of being sent back to federal prison after the end of the pandemic has garnered lots of attention from advocates and the media.  But, ironically, with the pandemic dragging on, that cohort is still likely to be able to stay home for the foreseeable future even if Prez Biden does not grant some kind of mass clemency (and, as I have argued, Congress ought to be acting to address this issue).  Meanwhile, the federal prison population is growing significantly again, perhaps in part due to a number of beneficial changes to federal sentencing law from the FIRST STEP Act having not yet been fully implemented into the guidelines.  (I particularly have in mind potential expansion of the "safety valve" adjustment in the drug guidelines based on the statutory change in FIRST STEP; a parallel guideline change which might reduce thousands of drug sentences if made fully retroactive.)  With the pandemic dragging on and the federal prison population on the rise, it is especially worrisome that the Biden Administration is moving at a pace that could result in there is no functioning  US Sentencing Commission in place until 2022 and even no realistic chance for any needed guideline amendments until perhaps 2023.

I understand that other appointments, from judges to other executive branch positions, are a higher priority for many political insiders and advocacy groups.  But shrewd and bold nominations to the US Sentencing Commission could and would serve as an effective way for Prez Biden to signal a real commitment to criminal justice reform while also reviving an agency with a long history of impactful work on the federal sentencing system.  In addition to hoping the Biden team is making some progress on this front, I also now want to urge criminal justice advocacy groups to see this is an important opportunity to advance needed change.

Last bit of insider tounge-in-cheek joke:  Maybe the Biden team should get really clever and urge Justice Breyer to give up his day job and serve again on the US Sentencing Commission. 

A few of many  prior recent related posts:

July 20, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Monday, July 19, 2021

"The Evolving Standards, As Applied"

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

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences.  Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility — that the defendant is beyond hope of rehabilitation — as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed.  While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases.  The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases.  Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases.  Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.

Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences.  In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases.  Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine.  Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

July 19, 2021 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends

As reported in this new New York Times article, headlined "Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency," it appears that the US Department of Justice is not changing its view of the limits of congressional authority to move people to home confinement under the CARES Act. Here are the details:

The Biden administration legal team has decided that thousands of federal convicts who were released to home confinement to reduce the risk of spreading Covid-19 will be required by law to return to prison a month after the official state of emergency for the pandemic ends, officials said on Monday.

The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo by the Justice Department’s Office of Legal Counsel, which said inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations.  Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.

That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.

The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.  Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.

When asked for comment, the White House responded with a general statement about the administration’s support for policies that can reduce incarceration. “President Biden is committed to reducing incarceration and helping people to re-enter society,” said Andrew Bates, a White House spokesman. “As he has said, too many Americans are incarcerated, and too many are Black and brown. His administration is focused on reforming our justice system in order to strengthen families, boost our economy and give people a chance at a better future.”...

The disclosure of the Biden legal team’s internal decision came as an ideologically broad range of advocacy groups — nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition — stepped up pressure on the Biden administration not to recall inmates from home confinement when the emergency ends.

Notably, however, those organizations issued a letter framing their request in terms of Mr. Biden using his clemency powers to resolve the issue. “On the campaign trail and during your presidency, you have spoken about the importance of second chances,” according to the letter. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.”

I do not find this news especially surprising; if there was any considerable legal wiggle room here, I think the Justice Department would have spoken some time ago.  And, as this article highlights, I have sensed that a number of advocates have been talking up blanket clemency as the most fitting way to resolve this issue.  But I am always eager to highlight the point I made in this recent post, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," that Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.

In addition, as I highlighted in this recent post, another option for case-by-case relief is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce sentences and not just allow these sentences to be served at home.  Of course "the volume of work required" for so many CR motions would be considerable, but the Justice Department could (and I think should) support and even bring sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

Some prior recent related posts:

July 19, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

NIJ releases new publication with "Guidelines for Post-Sentencing Risk Assessment"

Via this webpage, headed "Redesigning Risk and Need Assessment in Corrections," the National Institute of Justice discusses its notable new publication titled "Guidelines for Post-Sentencing Risk Assessment."  Here is how the webpage sets up the full publication:

Over the past several decades, the use of RNA in correctional systems has proliferated. Indeed, the vast majority of local, state, and federal correctional systems in the United States now use some type of RNA. Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the kind of RNA currently used across much of the country has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the full potential of RNA instruments, NIJ recently released Guidelines for Post-Sentencing Risk Assessment.  These guidelines, assembled by a trio of corrections researchers and practitioners, are built around four fundamental principles for the responsible and ethical use of RNAs: fairness, efficiency, effectiveness, and communication.  Each of these principles contributes to an innovative, practical checklist of steps practitioners can use to maximize the reliability and validity of RNA instruments.

Here is part of the executive summary from the full report:

Risk and needs assessment (RNA) tools are used within corrections to prospectively identify those who have a greater risk of offending, violating laws or rules of prison or jail, and/ or violating the conditions of community supervision.  Correctional authorities use RNA instruments to guide a host of decisions that are, to a large extent, intended to enhance public safety and make better use of scarce resources.  Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the style and type of RNA currently used by much of the field has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the potential that RNA instruments have for improving decision-making and reducing recidivism, we have drawn upon our collective wisdom and experience to identify four principles that are critical to the responsible and ethical use of RNAs.  Within each principle is a set of guidelines that, when applied in practice, would help maximize the reliability and validity of RNA instruments.  Because these guidelines comprise novel, evidence-based practices and procedures, the recommendations we propose in this paper are relatively innovative, at least for the field of corrections.

■ The first principle, fairness, holds that RNA tools should be used to yield more equitable outcomes. When assessments are designed, efforts should be taken to eliminate or minimize potential sources of bias, which will mitigate racial and ethnic disparities. Preprocessing, in-processing, and post-processing adjustments are design strategies that can help minimize bias. Disparities can also be reduced through the way in which practitioners use RNAs, such as delivering more programming resources to those who need it the most (the risk principle). Collectively, this provides correctional agencies with a strategy for achieving better and more equitable outcomes.

■  The second principle, efficiency, indicates that RNA instruments should rely on processes that promote reliability, expand assessment capacity, and do not burden staff resources. The vast majority of RNAs rely on time-consuming, cumbersome processes that mimic paper and pencil instruments; that is, they are forms to be completed and then manually scored by staff. The efficiency of RNA tools can be improved by adopting automated and computer-assisted scoring processes to increase reliability, validity, and assessment capacity. If RNA tools must be scored manually, then inter-rater reliability assessments must be carried out to ensure adequate consistency in scoring among staff.

■  RNA instruments should not only be fair and efficient, but they should also be effective, which is the third key principle. The degree to which RNA instruments are effective depends largely on their predictive validity and how the tool is used within an agency. Machine learning algorithms often help increase predictive accuracy, although developers should test multiple algorithms to determine which one performs the best. RNA tools that are customized to the correctional population on which they are used will deliver better predictive performance.

■  Finally, it is important to focus on the implementation and use of RNAs so that individuals can become increasingly aware of their risk factors. To this end, the fourth key principle is to employ strategies that improve risk communication. Training the correctional staff who will be using the RNA tool is essential for effective communication, particularly in how to explain the needs and translate it into a case plan. A risk communication system, which includes case plan improvement, treatment-matching algorithms, and graduated sanctions and incentives, provides an integrated model for decision-making that helps increase an individual’s awareness of their own circumstances and need for programming.

July 19, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

New UNODC report details interesting global realities and trends in incarceration

A section of the United Nations Office on Drugs and Crime has released this interesting new data report highlighting on its cover page "Nearly twelve million people imprisoned globally; nearly one-third unsentenced; with prisons overcrowded in half of all countries."  This release about the report provides some context and highlights: 

One in every three prisoners worldwide are held without a trial, which means that they have not been found guilty by any court of justice, according to the first global research data on prisons published by the United Nations Office on Drugs and Crime.

The research brief, released ahead of Nelson Mandela International Day on 18 July, examines the long-term trends of imprisonment, stating that over the past two decades, between 2000 and 2019, the number of prisoners worldwide has increased by more than 25 per cent, with a global population growth of 21 per cent in the same period, with 11.7 million people incarcerated at the end of 2019.  This is a population comparable in size to entire nations such as Bolivia, Burundi, Belgium, or Tunisia.

At the end of 2019 — the latest year data is available — there were around 152 prisoners for every 100,000 population. While Northern America, Sub-Saharan Africa and Eastern Europe have experienced a long-term decrease in imprisonment rates of up to 27 per cent, other regions and countries, such as Latin America and Australia and New Zealand, have seen growth over the last two decades of up to 68 per cent.

At 93 per cent, most of the persons detained in prison globally are men.  Over the past two decades, however, the number of women in prisons has increased at a faster pace, with an increase of 33 per cent versus 25 per cent for men.

For those concerned about mass incarceration in the US and elsewhere, this report provides a terrific global snapshot of recent trends and some of the latest data. For example:

As of 2019, there were an estimated 152 prisoners for every 100,000 population globally.  This global rate has not changed much over the last two decades — it stood at 151 prisoners in 2000.  There is, however, considerable sub-regional variation: as of 2019, a much larger share of the population was imprisoned in Northern America (577 per 100,000 population), Latin America and the Caribbean (267) and Eastern Europe (262), than in Sub-Saharan Africa (84), Melanesia (78), or Southern Asia (48).  Furthermore, gender-specific rates also vary substantially across sub-regions. The high male imprisonment rate in the Northern American sub-region (1,048 male prisoners per 100,000 male population) is particularly noteworthy.

July 19, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

New report highlights how various federal agencies other than DOJ can advance criminal justice reform

The Center for American Progress has this intriguing new report titled "Beyond the U.S. Department of Justice: An Intersectional Approach To Advancing Criminal Justice Reform at the Federal Level." The report discusses the work that leading federal agencies other than the Justice Department could do to improve criminal justice systems. Here is part of the report's introduction:

The nation urgently needs to rethink justice system operations, from policing and prosecution to probation and parole. But a comprehensive approach to U.S. criminal justice reform must also look beyond the justice system. The nation must re-examine the web of policies that intersect with public safety and criminal justice — from education to economic development to health care and beyond. Only through an intersectional approach can the government truly redress the harms of the past and build a fairer, more just, and equitable future....

While the DOJ will undoubtedly play a significant role in reforming criminal justice policy and regulations during the next four years, other federal agencies will also be crucial to these efforts. From the Department of Agriculture to the Department of Veterans Affairs, every corner of President Biden’s administration will be essential in shaping the future of America’s approach to safety and justice. As the new administration works toward its promise to “strengthen America’s commitment to justice,” there are several agencies that can take meaningful action toward implementing progressive criminal justice reforms, reducing the footprint of the justice system, and removing barriers for formerly incarcerated individuals.

This report highlights some of the agencies beyond the DOJ that can have significant impacts on reforming the criminal justice system and outlines measures that they could take to establish policies and regulatory practices that would support a more fair and equitable justice system in the long term.

July 19, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Sunday, July 18, 2021

Catching up on notable mid-summer stories and commentary

The middle of July continues to bring many criminal justice stories and commentaries worth a read, and so here is a round up of links to catch up:

From CNN, "How crime stats lie — and what you need to know to understand them"

From The Crime Report, "Dream Corps Launches Campaign to Close Federal Prisons"

From The Marshall Project, "Inside The Nation's Overdose Crisis in Prisons and Jails"

From The Marshall Project, "Everyone on Death Row Gets a Lawyer. Not Everyone Gets a Kim Kardashian."

From NJ.com, "N.J. has dismissed 88K weed cases under new marijuana law"

From Politico, "4 wealthy donors fuel overhaul of California's criminal justice system"

From the New York Times, "A Pause in Federal Executions, but Uncertainty About What’s Next"

From the Washington Post, "Mass incarceration is bad law enforcement policy. It's bad for the economy, too."

July 18, 2021 in Recommended reading | Permalink | Comments (0)

Saturday, July 17, 2021

"Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision"

The title of this post is the title of this short report from the National Academies of Sciences, Engineering, and Medicine capturing the proceedings of a notable workshop. Here is how the report is described:

The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States.  This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process. Speakers at the workshop presented on deeply rooted inequalities within the criminal justice system, which exist not only in readily measured areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision.  This publication highlights the presentations and discussion of the workshop.  

July 17, 2021 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

"How the Criminal Justice System's COVID-19 Response has Provided Valuable Lessons for Broader Reform"

The title of this post is the title of this notable new research brief written by multiple authors and distributed by RAND Corporation.  I recommend the full document, and here is how it is introduced:

To better understand the challenges that the COVID-19 pandemic has created within the criminal justice system and how the various sectors of the system have adapted to those challenges, the Priority Criminal Justice Needs Initiative conducted a series of panel workshops with representatives of different sectors within the system.  Panels focused on law enforcement, the court system, institutional corrections, community corrections, victim services providers, and community organizations.  This brief presents key lessons learned and recommendations offered by panel workshop participants.

And here is a closing section that is dear to my data-nerd heart:

There is an urgent need to assess what data need to be collected now, as the pandemic continues, for fear of losing the chance to assess what has been learned and how the changes made have performed.  For example, in some agencies, there have been significant differences in the doses of justice intervention received by different people, and solid information about how those doses varied might become very difficult to reconstruct after their program involvement is complete.  What the system did — and the value of it continuing to do some of those things — is part of the story, and the collection of data to support research and evaluation efforts going forward can help support the case for maintaining some of those practices.  And some of the most important lessons from the pandemic come from what the system did not do, including the choice to not arrest many people and not require some individuals to complete their original sentences or periods of detention for particular crimes and violations.  Lessons can be learned from what that inaction means for potential changes that could be made to the justice system of the future.

July 16, 2021 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Thursday, July 15, 2021

Federal prison population starting to grow again as we approach six months into Biden Administration

The day after Joe Biden was inaugurated, I authored this post posing this 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 realities 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, 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 lots of expected and unexpected roles in shaping federal prosecutions and sentencings, and broader phenomena like the COVID pandemic can impact the federal prison population more than specific justice policies.  Consequently, I was disinclined 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 we saw any major DOJ policy changes and many more months before any policy changes started impacting the federal prison population count.  

Sure enough, when we hit the "100 days" milestone for the Biden Administration, I noted in this May 6, 2021 post that the federal prison population clocked in at 152,085 according to the federal Bureau of Prisons accounting.  In other words, no significant prison population growth early on in the Biden era.  But two months later, as we approach the six month mark for the Biden Administration, the federal prison population is starting to really grow again according to the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  Specifically, as of the ides of July 2021, the federal prison population clocks in at 154,596.

A BOP-measured growth of over 2500 federal inmates in just over two months strikes me as pretty significant, although I would guess that an easing of the COVID pandemic is the primary explanation.  The number of federal sentencings and the number of persons required to report to begin serving federal sentences have likely increased significantly in the last few months; I doubt any new Biden Administration (or AG Garland) policies or practices account for the (now 2%) growth in the federal prison population during the first six months of Joe Biden's presidency.

That said, I hope I am not the only one watching this number closely.  Especially given that the COVID pandemic is not really over and that a lot more surely could be safely "cut" from a bloated federal prison population, it will be quite disappointing if the Biden first term replicates the Obama first term marked by quite significant federal prison population growth.

July 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

  • Black Disparities in Youth Incarceration
    • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
    • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
  • Latinx Disparities in Youth Incarceration
    • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
    • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
  • Tribal Disparities in Youth Incarceration
    • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
    • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

July 15, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 14, 2021

Joe Exotic (of "Tiger King" fame) prevails on technical guideline issue to secure resentencing on Tenth Circuit appeal

It seems like a very long time ago that everyone was talking about Joe Exotic and Carole Baskin.  The must-see Netflix documentary "Tiger King" about their ugly rivalry dropped just as we were all going into pandemic lock down, and it was only about 18 months ago that we were all talking about Joe and Carole and their cats.  That is a lot less time than the 264 months (22 years) that Joe Exotic was sentenced to after his federal jury convictions for multiple wildlife crimes and two counts of using interstate facilities in the commission of murder-for-hire plots to kill Carole Baskin.

But what is old is new again thanks to today's Tenth Circuit panel decision in US v. Joseph Maldonado-Passage, No. 20-6010 (10th Cir. July 14, 2021) (available here).  Here is how the panel opinion gets started:

It was a rivalry made in heaven.  Joseph Maldonado-Passage, the self-proclaimed “Tiger King,” owned what might have been the nation’s largest population of big cats in captivity. Carole Baskin was an animal-rights activist who fought for legislation prohibiting the private possession of big cats.  He bred lions and tigers to create big-cat hybrids — some the first of their kind.  She saw the crossbreeding of big cats as evil.  He built his business around using cubs for entertainment.  She protested his events as animal abuse and urged boycotts.

The rivalry intensified after Baskin sued Maldonado-Passage for copyright and trademark infringement and won a million-dollar judgment.  Maldonado-Passage responded by firing a barrage of violent threats at Baskin, mostly online.  And he didn’t stop there.  Before long, he was plotting her murder.  Twice, within weeks, he set about hiring men to kill Baskin — one, an employee at his park; the other, an undercover FBI agent.

Maldonado-Passage soon faced a federal indictment charging him with twenty-one counts, most for wildlife crimes, but two for using interstate facilities in the commission of his murder-for-hire plots.  A jury convicted Maldonado-Passage on all counts, and the court sentenced him to 264 months’ imprisonment.

On appeal, he disputes his murder-for-hire convictions, arguing that the district court erred by allowing Baskin, a listed government witness, to attend the entire trial proceedings.  He also disputes his sentence, arguing that the trial court erred by not grouping his two murder-for-hire convictions in calculating his advisory Guidelines range.  On this second point, he contends that the Guidelines required the district court to group the two counts because they involved the same victim and two or more acts or transactions that were connected by a common criminal objective: murdering Baskin.

We hold that the district court acted within its discretion by allowing Baskin to attend the full trial proceedings despite her being listed as a government witness, but that it erred by not grouping the two murder-for-hire convictions at sentencing.  Accordingly, we affirm the conviction but vacate the sentence and remand for resentencing.

As noted by the 10th Circuit panel, correction of the guideline error will shift Joe Exotic's advisory sentencing range down to 210 to 262 months from the 262 to 327 months used at his initial sentencing.  So Joe will still be facing a hefty guideline range, but maybe he will be better able to advocate and secure a below-guideline range at an upcoming resentencing.

July 14, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (0)

Prez Biden names new drug czar just in time for latest disconcerting accounting of drug overdose casualties

Sub-buzz-10462-1626268647-10As reported in this Politico piece, the "Biden administration is tapping Rahul Gupta as its top drug policy official, charging the former West Virginia public health commissioner with leading federal efforts to combat a spiraling addiction crisis.  In some drug reform quarters, Gupta's appointment is being celebrated as evidenced by this Marijuana Moment piece headlined "Biden Selects White House Drug Czar Who Helped Implement State Marijuana Program And Touted Medical Benefits."  But this new Filter article about the appointment strikes a much more wary tone:

Filter broke the news in March that Gupta was the leading candidate for the role, reporting that harm reduction experts and activists have been critical of his drug policy record. In 2018, he supported the closure of a low-barrier syringe service program.  West Virginia is not only struggling to prevent soaring overdose deaths, but is now facing multiple outbreaks of HIV and hepatitis C, driven by a lack of harm reduction infrastructure and access to sterile syringes for people who use drugs.  In February, the Centers for Disease Control and Prevention described Kanawha County’s HIV outbreak as “the most concerning in the United States.”

It remains to be seen whether as “drug czar” Gupta will take more pro-harm reduction positions and support local harm reduction organizations that are facing political backlash across the country.

“The Biden Administration has made enhancing evidence-based harm reduction efforts one of ONDCP’s top priorities,” Robin Pollini, associate professor at West Virginia University’s Department of Behavioral Medicine & Psychiatry, told Filter.  “I sincerely hope Dr. Gupta will embrace the opportunity to lead on that issue.  And I would ask that he bring that leadership without delay back to West Virginia, where anti-harm reduction laws at both the state and local levels are literally killing our loved ones, friends, and neighbors.”

Gupta is set to take on the federal government’s top drug policy job during a historic year of record-breaking overdose deaths, driven primarily by the presence of illicitly manufactured fentanyl in the unregulated drug supply, as well as stimulants like methamphetamine.

This last sentence from the Filter piece foreshadowed this morning's headlines with the latest reports on just how bad the numbers were on overdose deaths in 2020. Here are a couple of the reports:

From BuzzFeed News, "More People Than Ever Died Of Drug Overdoses In The US In 2020"

From the Wall Street Journal, "U.S. Drug-Overdose Deaths Soared Nearly 30% in 2020, Driven by Synthetic Opioids"

These press reports on the latest 2020 overdose death data draw from this CDC page with more details.  There is an interesting map on the CDC page showing state-by-state overdose numbers  in 2019 and 2020.  Remarkably, two states saw declines in overdose deaths in 2020, New Hampshire and South Dakota.  But, even more remarkably, neighboring Vermont and Nebraska saw huge increases in overdose deaths in 2020.  Sadly, it is hard to find any clear pattern in all the state data except lots of death.

July 14, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

"Criminalizing Migration"

The title of this post is the title of this notable short paper now available via SSRN authored by César Cuauhtémoc García Hernández.  Here is its abstract:

Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity.  Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies.  The presidency of Donald Trump augmented this trend and brought it to public attention.  But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants.  Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.

July 14, 2021 in Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

What legally distinguishes a "non-violent Federal cannabis offense" from a violent one (and would multiple SCOTUS rulings be needed to sort this out)?

Legal Marijuana Oregon Measure 91The question in the title of this post is prompted by key language in the resentencing and expungement provision of the "discussion draft" of Senate Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this CAO "discussion draft" is available here; this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy (see coverage here at MLP&R).  Of course, I am distinctly interested in the criminal justice provisions of this bill, and I was excited to see there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT."  But the CAOA bill draft includes a notable (and I think problematic) linguistic limit on the reach of resentencing and expungement.

Specifically, the main expungement provision of the CAOA calls for automatic expungement of only a "non-violent Federal cannabis offense."  CAO sec. 311(a)(1) (emphasis added).  Similarly, the provision allowing for "sentencing review" states:

For any individual who is under a criminal justice sentence for a non-violent Federal cannabis offense, the court that imposed the sentence shall, on motion of the individual, the Director of the Bureau of Prisons, the attorney for the Government, or the court, conduct a sentencing review hearing.  If the individual is indigent, counsel shall be appointed to represent the individual in any sentencing review proceedings under this subsection.

CAO sec. 311(b)(1) (emphasis added).  I really like the provision requiring the appointment of counsel for these "sentencing review proceedings."  But I wonder and worry that, if this provision were to become law, counsel might be spending way too much time just figuring out whether prospective clients qualify as "non-violent" federal cannabis offenders. 

Though we all often use terms like violent and non-violent as offense descriptors, federal criminal justice practitioners know all too well that there is never-ending litigation in the context of many other federal statutes and provisions concerning whether certain prior offenses qualify as "violent" or not.  (Frustrated by just one small piece of this litigation, I joked in this post that one of the circles of hell set forth in Dante's Inferno surely involved trying to figure out what kinds of past offenses can or cannot be properly labeled "violent.")

Especially troublesome in this context is the realty that, technically, all basic federal drug offenses are "non-violent" because there are not any formal elements of these offenses that require any proof of force or injury.  And yet, more than a few "drug warriors" have been heard to say that all drug crimes are by their very nature violent and that the only types of  drug offenders who get the attention of federal prosecutors are those who have a violent history or violent tendencies.  Consequently, I would expect that federal defense attorneys would have a basis to argue that every  "Federal cannabis offense" qualifies as non-violent, while federal prosecutors would likely contend that at least some (many?) federal cannabis offenders are to be excluded by this "non-violent" limit in the bill text.

I suspect that this section of the Cannabis Administration and Opportunity Act was just drawn from similar language in the House version of proposed federal marijuana reform (section 10 of the MORE Act), and the CAOA's current status as a "discussion draft" should provide an opportunity to clean up this problematic adjective.  Though I understand the political reason for wanting to distinguish less and more serious drug offenders for expungement and resentencing provisions, the "non-violent" terminology seems to me quite legally problematic.  (There are other aspects of the "RESENTENCING AND EXPUNGEMENT" section of this new bill that are far from ideal, but this terminology struck me as the biggest red flag.)

Some related work in this space:

A few of many prior recent related posts:

July 14, 2021 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, July 13, 2021

Interesting (but unclear) local report on federal sentencings in NYC impacted by COVID realities

The New York Daily News has this interesting (but less-than-clear) article discussing some federal sentencing issues under the headline "Brutal conditions in NYC jails during COVID pandemic caused federal judges to impose lighter sentences: analysis."  Here are excerpts:

Federal judges handed down dozens of lighter sentences due to brutal conditions in New York City’s federal jails during the coronavirus pandemic, new statistics obtained by the Daily News show.

A Daily News analysis of 43 cases involving people who could not afford their own attorneys shows that judges in Manhattan and Brooklyn federal courts imposed sentences that were on average 58% lower than what federal guidelines recommended.  In nearly all of the cases, judges either cited coronavirus conditions behind bars in their sentences, or attorneys emphasized the conditions in legal briefs.

In one case in July 2020, Judge Paul Engelmayer noted that punishment for Juan Carlos Aracena De Jesus’ illegal reentry into the U.S. after being deported was never supposed to include catching coronavirus. “I am mindful ... that you have served most of your time in prison so far during the worst pandemic in this country during the past 100 years,” Engelmayer said. “I’m mindful that your experience in prison as a result of the pandemic, the preceding lockdown, the ensuing lockdown, and your own illness was frightful. Prison is supposed to be punishment, but it is not supposed to be trauma of that nature or close.” While the sentence guidelines in the case was for 30-37 months, Engelmayer sentenced Aracena to time served.  He had spent six months at the Metropolitan Correctional Center in Manhattan.

Judge Paul Oetken went so far as to come up with a formula for how much credit inmates should receive toward a sentence if they were behind bars during the pandemic. “I do believe that because it’s been harsher than a usual period that it’s more punitive, that it’s essentially the equivalent of either time and a half or two times what would ordinarily be served,” Oetken said on April 2 while sentencing a low-level crack dealer.  The sentence amounted to time served for the dealer, Daniel Gonzalez, who said he has a recurring foot infection due to unsanitary showers at MCC.

In all the cases, COVID was not the sole factor judges used to determine sentences.  Judges also considered an inmate’s health, the nature of the crime and other factors.  For Victor Marmolejo, 47, the risk of deadly consequences from his diabetes resulted in him receiving an 18-month sentence when prosecutors had asked for up to four years....

Lawsuits have alleged that coronavirus ravaged the MCC in Manhattan and the Metropolitan Detention Center in Brooklyn and that staff failed to implement commonsense preventative measures. Inmates, meanwhile, were kept in lockdown and had limited or no access to family and their attorneys.  Judges have become unusually outspoken about problems at the MCC and MDC since the pandemic began....

The head of the Federal Defenders in Brooklyn, Deirdre Von Dornum, said the cases where incarcerated pretrial detainees received shorter-than-guidelines sentences based on medical and jail conditions were “far more” than they usually get.  “COVID-19 did not change the sentencing calculus.  Consistent with governing sentencing law, judges have always taken medical conditions and medical risks into account.  What changed was the breadth and depth of this medical crisis and the clear inability of MDC and MCC to protect those in their custody and care who had pre-existing medical conditions,” Von Dornum said.

I am not at all surprised to hear accounts of federal judges taking COVID-related matter into account at sentencing.  Indeed, the instructions Congress has set forth for sentencing judges in 18 USC § 3553(a) really mandates consideration of factors that COVID realities can impact in various ways.  So, what is most notable and important is not just how, but really how much, judicial sentencing decision-making is being impacted by COVID matters.

Unfortunately, this Daily News report, which the article describes as an "analysis of 43 cases involving people who could not afford their own attorneys" in Manhattan and Brooklyn federal courts, is too opaque to provide a clear picture of COVID-era sentencing realities.  During the COVID era, there have probably more than 1000 cases sentenced in Manhattan and Brooklyn federal courts, so the 43 cases analyzed by the Daily News are likely not truly representative.  Moreover, even before COVID, judges in the Eastern and Southern Districts of New York typically imposed within-guideline sentences in only about 25% of all cases.  So lots of below-guideline sentences for lots of reasons was the norm even before COVID.

That all said, the impact of COVID on sentencing practices presents critical and hard questions that I am pleased to see this local newspaper discuss.  I hope more media, as well as federal agencies and academics and many others, will keep seeking to explore these important issues.

July 13, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"We Know How to Fix the Clemency Process. So Why Don’t We?"

The title of this post is the headline of this new New York Times essay authored by Rachel Barkow and Mark Osler.  As with everything authored by these two professors, this piece should be read in full.  Here are excerpts:

The fundamental problem with having the Justice Department run clemency is that prosecutors aren’t good at it.  Under the department’s regulations, the Office of the Pardon Attorney must give “considerable weight” to the opinions of local prosecutors — the very people who sought the sentence in the first place.

These prosecutors typically don’t keep up with the people they prosecuted to learn what they’ve been doing while incarcerated or what their post-prison re-entry plans look like.  Their data point is the conviction itself, so their analysis of the case is frozen in time. No matter the intent from on high, it is hard to get around this obstacle.

Vice President Harris, a former prosecutor herself, has warned of “inherent conflicts of interest” in the current process. Justice Department lawyers, she argued during her campaign, should not determine whether people convicted by colleagues in the legal system should have their sentences shortened or commuted....

The faulty architecture of clemency has been apparent for decades, with shamefully low grant rates from presidents of both parties.  If the administration put in place a competent advisory board to process petitions instead of relying on the Justice Department’s flawed and biased process, it could address the backlog, just as a board addressed the huge backlog of petitions for clemency from draft evaders in the wake of the Vietnam War.

The board should include experts in rehabilitation, re-entry and prison records, including a person who has been incarcerated.  It would be able to consult with the Justice Department, but the department would no longer be responsible for the decision itself.  This will allow the board to make objective recommendations; then it will be up to the president whether to accept them.

The Biden administration understands the value of expertise and process.  Justice is the last place where an exception should be made.

July 13, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

BJS reports on "Alcohol and Drug Use and Treatment Reported by Prisoners"

The Bureau of Justice Statistics has released this new report, titled "Alcohol and Drug Use and Treatment Reported by Prisoners: Survey of Prison Inmates, 2016," which explores drug and alcohol use among prisoners before they were imprisoned their participation in drug and alcohol treatment programs since admission to prison.  Here are "Highlights" appearing on the report's first page:

And here are just a few of the "Other key findings" that also caught my eye:

July 13, 2021 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

"Promoting Proportionality Through Sentencing Guidelines"

The title of this post is the title of this short new paper authored by Julian V. Roberts now available via SSRN.  Here is its abstract:

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing.  The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing. 

July 13, 2021 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Monday, July 12, 2021

A true scholarly feast for Apprendi fans

I was quite pleased to discover that the North Carolina Law Review now has fully available online here the full contents of its June 2021 issue with article from its Apprendi at 20 symposium.  Everyone of these articles looks like a must-read and I am already joyously working my way through them all:

July 12, 2021 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1)

Spotlighting prosecutors advocating for and embracing second-look sentencing mechanisms

At a conference a dozen years ago, I spoke about the need for second-look sentencing mechanisms and argued that prosecutors should be much more involved in reviewing past sentences.  That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010). 

I am very pleased that these ideas are finally coming into vogue, as highlighted by this new Law360 piece headlined "New Wave Of Prosecutors Push For Resentencing Laws."   I recommend this piece in full, and here are excerpts:

Washington county prosecutor Dan Satterberg knew when his state passed its three-strikes law in 1993, mandating that repeat offenders of certain crimes be sentenced to life without parole, that those sentences would one day need to be undone....

When Satterberg was elected district attorney of Washington's King County in 2007, he created a team to review cases, identify people who received life sentences under the three-strikes law and try to find a legal avenue for those people to be resentenced....

But Satterberg realized that in order to move more quickly with resentencing in more cases, he needed to have the explicit legal authority to request judges to resentence people.  So Satterberg drafted and lobbied for the passage of S.B. 6164 that gives Washington state prosecutors the power to request resentencing in the interest of justice.  The law was passed last year.

So far, Satterberg has not been able to get anyone resentenced under the new law, because the court asked prosecutors not to file these resentencing petitions in light of the COVID-19 pandemic and limited court operations. Satterberg's office, however, has identified more than 100 cases that could be eligible for resentencing under the law. The office hopes to have its first resentencing under this law in August....  "I think it's consistent with the overall mission of the prosecutor, which is to seek justice," Satterberg said about S.B. 6164. "If there are procedural barriers to seeking justice, then you need to advocate to remove those."

More state and county prosecutors are reaching the same conclusion as Satterberg that they need the power to request resentencing from judges to correct past injustices, end mass incarceration, give people second chances and divert money spent on incarceration to more effective crime prevention methods.

In April, more than 60 current and former prosecutors signed a statement by the nonprofit network Fair and Just Prosecution urging their colleagues to review decadeslong sentences in their jurisdictions and to no longer seek such sentences, except in cases where the convicted individual poses a serious safety risk....

The bill that Satterberg spearheaded was inspired by the first prosecutor-initiated resentencing law passed by California in 2018.  The California law, A.B. 2942, was drafted by Hillary Blout, a former San Francisco prosecutor who worked under Vice President Kamala Harris when she served as the district attorney of San Francisco.

After Blout served as a prosecutor for six years, she founded the nonprofit For the People in 2019 that works with prosecutors to implement resentencing legislation in their states.  Blout said that resentencing laws are important to correct failed policies that sought to achieve public safety by imprisoning people for as long as possible....

Twenty-five states including New York, Virginia and Texas are currently considering resentencing legislation, according to a report released in May by The Sentencing Project, a nonprofit research organization that aims to improve the U.S. criminal justice system and reduce the prison population.  Oregon and Illinois both passed prosecutor-initiated resentencing laws during this legislative session that were signed by their respective state governors in late June.

While these resentencing laws have the power to end harsh sentences and end mass incarceration, some advocates have criticized resentencing laws that only allow prosecutors to request resentencing.  Advocates argue that incarcerated people should also be allowed to petition courts for resentencing in their cases.  Not all prosecutors are prioritizing resentencing even when they have the power to do so, leaving incarcerated people serving overly long sentences, they say.

A few of many prior related posts:

A sampling of my prior writing on this front through the years:

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

Sunday, July 11, 2021

Spreading word about post-graduate legal fellowships with Brennan Center’s Justice Program

I received an email earlier this month from Lauren-Brooke Eisen, the Director of Justice Program at the Brennan Center for Justice, which I am happy to be able to share here to spread the word about fellowship opportunities:

Each year, the Brennan Center looks to partner with current law school students and judicial law clerks interested in applying for postgraduate legal fellowships.  Such fellowships include those funded by programs like the Equal Justice Works, Skadden, and Kirkland & Ellis fellowship programs, and law-school-specific fellowships, like the Arthur Liman Public Interest Law Fellowship, the Robina Public Interest Fellowship at the University of Minnesota Law School, and the Columbia Law JD Public Interest and Government Fellowship, among others.

The Justice Program in particular is looking for assistance with research, policy development, and advocacy aimed at reducing the size and scope of our criminal legal system in addition to reducing the harms of our vast carceral state. Much of our work focuses on underscoring racial disparities and the perverse incentives that help sustain mass incarceration and uncovering the economic injustices of our criminal legal system, among others.

We especially value the perspectives of potential fellows with past experience in the criminal legal system or related legal reform work.  If you know someone who might be interested in this position, please tell them to email a short statement describing their project proposal, along with a resume, transcript, writing sample, and contact information for three references to brennancenterjobs @ nyu.edu or to me directly at Lbeisen @ nyu.edu  The subject line should read “Fellowship Opportunities,” and the message should indicate the fellowship for which they are seeking sponsorship.

July 11, 2021 in Who Sentences | Permalink | Comments (0)

"Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic"

The title of this post is the title of this new article by Miko Wilford, David Zimmerman, Shi Yan, and Kelly Sutherland published in the Journal of Experimental Psychology: Applied. Here is its abstract:

Over 95% of criminal convictions in the United States are the result of guilty pleas.  Consequently, it is critical that we ensure the process of pleading guilty is as free of coercion as possible.  Yet, research has indicated that incarcerating defendants to await trial could have an undue influence on their decision to plead guilty.  The current research employed a novel computer simulation to examine the impact of the COVID-19 pandemic on plea decision making among the innocent and the guilty when faced with potential pretrial detention.  While presenting COVID-related information to participants increased both true and false guilty pleas, further analyses indicated that concerns about COVID-19 weighed more heavily on the innocent than the guilty.  These findings illustrate the negative impact a pandemic could have in combination with a system of pleas that often allows prosecutors to provide defendants with just one guaranteed respite from jail — a guilty plea.

July 11, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Lots more notable weekend reading

Before the long holiday weekend, I flagged in this post (too) many stories and commentaries worth a read.  A subsequent work week and weekend, though shorter, still produced another long list of pieces criminal justice fans might want to check out:

From The Hill, "Biden under pressure to pick new breed of federal prosecutors"

From National Review, "Prison Reform Takes Center Stage at CPAC"

From the New York Times, "How Should We Do Drugs Now?"

From the New York Times, "The Real Toll From Prison Covid Cases May Be Higher Than Reported"

From Reason, "He Sold $20 Worth of Drugs. Prosecutors Want Him in Jail for Almost 10 Years—and More if He Refuses the Plea Deal."

From Slate, "It’s Time for a New Crime Bill"

From Slate, "Joe Biden Is Doing Nothing to Prevent Another Federal Execution Spree"

From The Trace, "Illinois Has a Program to Compensate Victims of Violent Crimes. Few Applicants Receive Funds."

July 11, 2021 in Recommended reading | Permalink | Comments (0)

Saturday, July 10, 2021

"Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives"

The title of this post is the title of this notable new paper authored by Olwyn Conway now available via SSRN. Here's the abstract:

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system.  This insulates the criminal system’s racially disparate outcomes from scrutiny, thereby precluding reform.  Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system.  After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment that demands and necessitates transformative proposals that call on prosecutors to reject the myth of colorblindness and adopt a race-conscious approach to criminal prosecution.  This creates an opportunity — and need — to generate and articulate specific and innovative frameworks to change the culture of prosecution.

This Article seeks to provide one such framework by examining the ethical duties of American prosecutors in the underexplored area of prosecutorial storytelling.  This Article focuses on trial narratives as a lens through which to view the ethical duties of the prosecutor writ large, arguing that trial narratives that advance or invoke a racialized stereotype or stock story violate the prosecutor’s duty to justice.  A race-neutral or “colorblind” approach to prosecution ignores the ethical violations inherent in racialized prosecutorial storytelling. By contrast, a color-conscious approach offers prosecutors a path to address the systemic racism that pervades every aspect of the American criminal system—including the stories that prosecutors tell.

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

Friday, July 9, 2021

New Urban Instititute report reviews "Implementation of the First Step Act: The Risk and Needs Assessment System"

Julie Samuels and Emily Tiry of the Urban Institute have this notable new 23-page report about one aspect of FIRST STEP Act implementation.  Here is its abstract:

The December 2018 First Step Act sought to address many long-standing problems in the federal prison system.  This brief focuses on implementation of the act’s risk and needs assessment system, intended to incentivize people in federal prison to pursue recidivism reduction programming that can sometimes reduce their time behind bars.  We summarize that system’s key requirements and major takeaways so far; detail the progress and challenges encountered in developing and implementing the risk assessment tool, needs assessment process, and earned time credits; and offer recommendations for improvement including suggestions to expand eligibility for early release or transfer and to consider the equity of the risk assessment tool.  We conclude that the US Department of Justice and the Federal Bureau of Prisons (BOP) could take a more vigorous approach to implement the law and fully realize the potential of the risk and needs assessment system to reduce recidivism and time spent in federal prisons.

Are you listening, DOJ and Congress? We are getting closer to a full three years since the FIRST STEP Act became law, and its implementation remains shaky and lots more could be done to make this first step even more consequential and impactful.

July 9, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Safety, Crisis, and Criminal Law"

The title of this post is the title of this notable new paper authored by Jenny Carroll and now available via SSRN.  Here is the abstract:

Concepts of safety and prevention of danger pervade the criminal law canon.  Arizona is no exception.  The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger.  The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.  The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.  On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.

None of this is unusual or surprising.  Criminal law has long claimed the joined realms of safety and protection as its own. The narrative of these concepts, however, is deceptively complex.  Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive.  Who warrants protection and how that protection is realized is obscure; — its precise calculation a mystery.  Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of danger not by what they are, but by what they are not.  The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation.  These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation. Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly. In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing.  For their part, those who live under the law — informal actors — may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.  This uses lessons from the COVID-19 pandemic and the response to George Floyd’s death to re-imagine these discretionary moments.

July 9, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, July 8, 2021

District Judge cites "severe remorse" among reasons to give Michael Avenatti (way-below-guideline) sentence of 30 months in federal prison

This NBC News piece reports that "Michael Avenatti, the brash attorney who had been a leading foe of then-President Donald Trump, was sentenced Thursday to 30 months in prison for a brazen, botched scheme to extort athletic apparel giant Nike out of up to $25 million." Here is more about this high-profile sentencing:

That sentence was much lower than the nine years that was the bottom of the sentencing range suggested by federal guidelines, and not anywhere close to “a substantial” prison term sought by federal prosecutors for the California lawyer.

“I alone have destroyed my career, my relationships and my life. And there is no doubt I need to pay,” Avenatti, 50, tearfully told Manhattan federal court Judge Paul Gardephe before he was sentenced. “I am truly sorry for all of the pain I caused to Mr. Franklin and others,” Avenatti said, referring to his former client Gary Franklin, an amateur basketball coach.

Avenatti’s sentencing came more than three years after he gained widespread fame, and infamy, for his bombastic representation of porn star Stormy Daniels, who received a $130,000 hush money payment from Trump’s then-personal lawyer Michael Cohen before the 2016 presidential election to keep her quiet about claims she had sex with Trump years before he ran for the White House.

Daniels is one of several former Avenatti clients that he is charged with swindling in two other separate federal prosecutions, one of which is due to begin next week in California.

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon. Avenatti’s lawyers had asked for a sentence of just six months....

At his trial next week, Avenatti is accused of crimes that include defrauding clients out of millions of dollars. One of those clients was a mentally ill paraplegic. Avenatti next year is due back in Manhattan federal court to be tried on charges related to allegedly swindling Daniels, out of $300,000 in proceeds for a book she wrote.

July 8, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8)

Another notable round of new Quick Facts publications from US Sentencing Commission

In a number of prior post, I have praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). This is another such post intended to flag these newest publications:

July 8, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

"Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices"

Crim12275-fig-0007-mThe title of this post is the title of this important and impressive new empirical federal criminal justice research just published in Criminology and authored by Mona Lynch, Matt Barno and Marisa Omori. Here is the article's abstract:

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

This article includes a data set of over 300,000(!) federal drug cases, and the findings are extremely rich and detailed. I have reprinted one of many interesting charts above, and here is the article's concluding paragraphs (without references):

Recent developments call into question whether the existing workgroup dynamics in the federal system that we have documented here — with prosecutors generally pushing for more punitive outcomes, and judges and defense attorneys acting as a counter to this punitiveness — are likely to persist in the future.  Although there was bipartisan Congressional support for the First Step Act, suggesting that the late twentieth-century punitive policies may continue to wane in appeal, the federal criminal system has also undergone significant change, particularly in the judiciary where lifetime appointments prevail.  The Trump administration was extremely active in appointing new judges to existing vacancies, and as a result, nearly a quarter of active federal judges were appointed during his presidency.  Given the conservative political leanings of many of these judges, it is fair to question whether these judges might in fact oppose a move toward less punitive practices among federal prosecutors.

Even if the Biden administration is successful in scaling back punitive policies and installs U.S. Attorneys who are in ideological alignment with such reforms, prosecutorial power is not limitless in determining case outcomes.  Under advisory guidelines, judges have considerable power to sentence above the guidelines, as long as it is within the generous statutory limits that characterize federal criminal law.  In the face of this possibility, federal prosecutors may opt to exercise their most powerful tool—the discretionary decision to file charges, or not.  Thus, should the dynamics shift to where the current roles are reversed, prosecutors could come to rely on their discretion not to charge in those drug cases where they seek to eliminate the chance that those potential defendants receive long sentences.  In any case, as our results suggest, we should expect that any potential future conflicts among federal prosecutors and judges are likely to play out differently across different court contexts, depending on the conditions and make-up of each local district.

July 8, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.

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It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (11)

Wednesday, July 7, 2021

"When Will Joe Biden Start Using His Clemency Powers?"

The question in the title of this post is the headline of this lengthy New York magazine article by Zak Cheney-Rice.  The obvious answer, of course, is "not soon enough," given that Prez Biden has gone his first six month, amid a global pandemic after campaigning as a reformer, without a single act of clemency.  But the piece strikes a slightly more hopeful tone, and here excerpts: 

According to the New York Times, the Biden administration has signaled, as recently as this summer and in multiple conversations with advocates, that he would use clemency both broadly and soon, with an emphasis on advancing his racial justice agenda.  This is significant ... because over the last several decades, presidents have been using their clemency powers less often, waiting until later in their presidencies to do so, and leaving people in squalid and dangerous conditions for longer periods of time because of it....

In the waning days of Donald Trump’s presidency, his administration issued a memo saying the thousands of people who’d been released from federal prison to home confinement during the “pandemic emergency period” would be locked up again as soon as the order was lifted, if their sentences weren’t up by then.  According to the Times, this is still in effect, and the Biden administration has been weirdly cagey about whether it would reverse Trump’s order and let them stay home.  These 4,000 prisoners are pre-selected and already free, so they’re easy candidates for commutations. The White House reviews the emergency declaration every three months.  None of these reviews has yielded answers so far, and the next one is scheduled for July.

This situation is shaping up to be a test of Biden’s ambitions regarding clemency.  There’s no concrete reason to think the president won’t make good on his promise to use clemency more than has become normal, but that’s mostly because the bar is so low.  Since Richard Nixon was president — a useful marker here, because that’s when the era of mass incarceration started — there’s been a fairly steady downward trend in presidents’ use of this unique power, which is granted to them by the Constitution, and which entails mostly commutations (which partly or completely cut short sentences) and pardons (which essentially wipe out convictions).

Nixon granted clemency to 926 people.  Trump granted it to 237, bookending a period of more than 50 years, starting with Ronald Reagan, that saw the numbers drop below 500 and stay there, with one exception, through the present day.  (With the caveat that this period has seen two one-term presidents, Democrats have usually been more willing to use this power than Republicans, but not by much. )  The one exception was Barack Obama, who granted clemency, mostly in the form of commutations, to 1,927 people, the most since Harry Truman.  As of July 1, 2021, there were still 153,683 federal prisoners.

Biden has hinted that he’ll start sooner rather than later, possibly even before the 2022 midterms, which is a big deal because of the politics surrounding the issue.  The American antipathy toward clemency is one of the main motivators behind the downward trend in pardons and commutations: The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity. To minimize the political fallout, they usually wait until late to start granting the bulk of them.  Oftentimes, like in Trump’s case, most get rushed through during a president’s last days in office.

The effect is that clemency has become really unusual.  And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.  There have, of course, been good reasons to monitor presidents’ clemency decisions. Trump used it to reward imprisoned cronies and mislead voters.  Bill Clinton famously pardoned the husband of a wealthy Democratic donor.  But the scrutiny is overwhelmingly due to its rarity, not its infrequent abuses.  It’s been fashioned into an almost cosmically precious blessing to those who receive it, rather than a workaday part of a president’s duties.

Plenty of ideas have been floated about how to change this on a systemic level.  Rachel Barkow, a law professor of New York University, has spent years researching and developing ideas for how to make clemency more common, in part by making it less politically perilous and less vulnerable to conflicts of interest.  Both of these goals probably mean removing such decisions from the purview of the Justice Department, where they’re mostly handled today.  Federal prosecutors are responsible for these people being in prison in the first place.  Their decisions — which often determine which petitions get to the president, for example — inevitably run up against the fact that they’re often undermining, and potentially reversing, their own work.

To reduce the political risk, Barkow suggests establishing a clemency board, composed of interests from across the political spectrum, and spanning a wide range of people who work, have worked in, or have been impacted by the criminal legal system, to process requests and seek out candidates.  This would spread out responsibility enough to take the weight off any one person, thereby encouraging more commutations and pardons, especially for someone like Biden, who says he wants to grant them.  (Several states already have boards like this in place. Barkow, citing her research and others’, describes them as a “necessary precondition” where clemency is routine.)

Whatever the route, two things are clear about Biden’s plan so far: he hasn’t done anything yet, despite his signaling, and people close to him have indicated to the Times that he’s “not inclined to circumvent” the Justice Department — meaning he’s probably committed to an approach that preserves conflicts of interest and retains more political calculation than it needs to.  This is bad for normalizing clemency.  The president couldn’t end mass incarceration or even make a major dent in it, even with a more proactive strategy — the federal incarcerated population is too small as a portion of the whole, for one. But he can wield clemency symbolically, telegraphing to federal prosecutors which cases are worth pursuing, for example.  And in more practical terms, he can spare as many people as he can from what is functionally a life of terror, torment, and uncertainty, and can do so now and regularly moving forward to prevent needless suffering.

Jails and prisons are scary and often life-annihilating places, even in non-pandemic times, and there are untold numbers of people who shouldn’t be there.  Immediate fixes, though small, are available.  The longer Biden waits and the rarer presidential clemency stays, the more unusual it will continue to be.

A few prior recent related posts:

July 7, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)