Monday, July 6, 2020

Puzzling though crime data, practically and politically, in the crazy year that is 2020

This new New York Times piece discusses the latest crime data as we head into the back half of 2020.  The piece's full headline captures its themes: "It’s Been ‘Such a Weird Year.’ That’s Also Reflected in Crime Statistics: In large cities across America, murders are up sharply, while other violent crimes have decreased."  Here are excerpts:

The national numbers for murder and other types of violent crime rarely move in opposite directions. But this is no ordinary year.

Overall crime is down 5.3 percent in 25 large American cities relative to the same period in 2019, with violent crime down 2 percent.

But murder in these 25 cities is up 16.1 percent in relation to last year. It’s not just a handful of cities driving this change, either. Property crime is down in 18 of the 25 sampled cities, and violent crime is down in 11 of them, but murder is up in 20 of the cities....

Homicides usually rise in the summer, which coincided this year with many people emerging from pandemic lockdown. In one recent weekend in Chicago, 14 people were killed and at least 106 people were shot, the most in eight years. And as The New York Times reported recently: “It has been nearly a quarter century since New York City experienced as much gun violence in the month of June as it has seen this year.” (On Sunday night, the city reportedly had nine killings in the previous 24 hours.)

An additional 17 cities provide year-to-date murder data. Murder is up 21.8 percent in all 36 cities with 2020 data through at least May, with 29 of those cities seeing an increase this year relative to last year.

How often do murder and other types of violent crime move in opposite directions? There have been only four years since 1960 (1993, 2000, 2002 and 2003) when murder increased but overall violent crime decreased nationally, and the increase in murder was small in each of those years. The average absolute difference between the national change in murder and violent crime since 1990 has been just 2.2 percent, so a big increase in murder nationally while violent crime falls is almost unheard-of.

But this year has been distinct in many ways, because of the pandemic and because of the protests and civil unrest after the death of George Floyd in police custody. Jerry Ratcliffe, a professor of criminal justice at Temple University and host of the Reducing Crime podcast, has cautioned against comparing crime figures in one year with the previous year. This year’s upheaval may be even more reason to be cautious.

Identifying the trend in murder statistics is relatively easy. Understanding why it is happening and what can be done about it is much harder. Phillip Atiba Goff, co-founder and C.E.O. of the Center for Policing Equity, points to increased domestic violence as one possible cause of the increase in murder. “The first explanation that I have is that this comes from people being locked inside (during quarantines) and a lack of social services,” he said. “All those things are things that we would expect to lead to higher rates of violence. That’s speculation, though. I have no evidence that that’s the right thing other than the rise in calls for domestic violence.”

Mr. Ratcliffe agrees that increased domestic violence may be playing a role. He also hypothesizes that “Covid-19 could have reduced the market and opportunities for recreational drug use/dealing, which puts stress on the drug markets and increases violence.”

“If that is one of the causes, then we might see those tensions ease as lockdowns are relieved,” he said.

Jennifer Doleac, associate professor of economics and director of the Justice Tech Lab at Texas A&M, said: “People are worried about increasing domestic violence, and that could certainly lead to increases in homicide. Any kind of crime where most of it is between strangers or requires people being out and about would be down, and homicide is usually between people who know each other, so it might be affected differently.”

It’s plausible that the increase in murder this year might reflect a trend that began before the pandemic got underway. A review of the percent change in murder in 10 cities before coronavirus struck (generally defined as through February or March) and those cities’ most recent June update for the year so far shows a worse year-to-date percent change in eight of them, suggesting that the trend may have accelerated over the last few months....

Some research suggests that a loss of trust in law enforcement can cause citizens to be reluctant to contact the police, and people may be more likely to take justice into their own hands to resolve disputes.

It’s important to keep the rise in historical perspective. Murder in New York was up 25 percent compared with last year as of June 14, but that total was the same one the city had in 2015. Murder is up 22 percent in Chicago, but it’s down 6 percent from where it was at this time in 2017. Murder is up 42 percent in New Orleans, but a year ago murder was its lowest point there in almost half a century.

“These numbers do not tell a story that supports any ideological side of the debate around policing,” Mr. Goff said. “What it supports at most is a need for rigorous curiosity about a vital issue.” Ms. Doleac also says it is too early to draw any firm conclusions: “This is such a weird year in so many dimensions, and it’s going to take us a while to figure out what caused any of these differences in crime. It is perfectly reasonable to think the first half of this year may not tell us what the rest of the year will look like.”...

“The reality is that we just don’t know” what’s driving the change in murder, Mr. Goff said, “and it’s not a straightforward process to figure it out.”

Notably, Prez Trump already has released a campaign ad seeking to tie police reform efforts to increased crime. If homicide numbers keep going up and up in big cities like New York and Chicago, I would expect the Trump campaign to continue to try to stoke up fear of crime and continue to claim that he is the only "law and order" candidate.  That political playbook worked pretty well for Richard Nixon in 1968 and for George H.W. Bush in 1988, and the next few months will show if it can work for Donald Trump.

One final macabre observation: as I reflect on crime data circa July 2020, I am finding that the COVID pandemic skews my perspective on some of the numbers.  These crime data on New York City reports 176 murders in roughly the first six months of 2020 compared to 143 murders during the same period in 2019.  While that is a troubling 23% increase in NYC murders for the first half of the year, it is still well less than half of the 500+ daily deaths from COVID that NYC experienced in early April. Though there are lots of problems with comparing data on homicides and COVID deaths, I am finding that the grim COVID death data that we are all still processing make even elevated homicide numbers look not quite as frightening.  Of course, a global pandemic should not make us complacent about crime, but I am still struck by how the reality and reactions to crime is always going to be contextual and contingent.

Prior related posts:

July 6, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Sunday, July 5, 2020

Celebrating freedom with another long list of federal sentence reductions using § 3582(c)(1)(A)

After a holiday weekend all about celebrating freedom in this great country, I am excited to provide another listings of new grants of federal sentence reductions using § 3582(c)(1)(A).  These lists represent a special kind of freedom for federal prisoners and those that care about them, and I am pleased to have nearly three dozen recent grants to report here:

United States v. Johnson, No. CR H-96-176, 2020 WL 3618682 (SD Tex. July 2, 2020)

United States v. Young, No. 14-CR-30024-2, 2020 WL 3605025 (CD Ill. July 2, 2020)

United States v. Browne, No. CR 14-10369-LTS, 2020 WL 3618689 (D Mass. July 2, 2020)

United States v. Tubbs-Smith, No. CR 18-20310, 2020 WL 3618511 (ED Mich. July 2, 2020)

United States v. McCalla, No. CR 11-452 (FLW), 2020 WL 3604120  (D N.J. July 2, 2020) 

 

United States v. Hanson, No. 6:13-CR-00378-AA-1, 2020 WL 3605845 (D Ore. July 2, 2020)

United States v. Fitch, No. 2:04-CR-262 JCM (PAL), 2020 WL 3620067 (D Nev. July 2, 2020)

United States v. Chargualaf, No. CR 95-00054, 2020 WL 3619007 (D Guam July 2, 2020)

United States v. Plank, No. 17-20026-JWL, 2020 WL 3618858 (D Kan. July 2, 2020)

United States v. Seals, No. CR 13-00653 SOM (11), 2020 WL 3578289 (D Haw. July 1, 2020)

 

United States v. Nealy, No. 3:12-CR-154(RNC)2, 2020 WL 3577299 (D Conn. July 1, 2020)

United States v. Heyward, No. 17-CR-527-PWG, 2020 WL 3547018 (D Md. June 30, 2020)

United States v. Burnett, No. 06-CR-00034-PB-2, 2020 WL 3545159 (D N.H. June 30, 2020)

United States v.Tillman, No. 12-CR-2024-CJW-MAR, 2020 WL 3578374 (ND Iowa June 30, 2020)

United States v. Garcia, No. CR 13-00884 HG-01, 2020 WL 3547933 (D Haw. June 30, 2020)

 

United States v. Gakhal, No. 15 CR 470-1, 2020 WL 3529904 (ND Ill. June 30, 2020)

United States v. Rachal, No. CR 16-10043-NMG, 2020 WL 3545473 (D Mass. June 30, 2020)

United States v. Pina, No. 18-CR-179 (JSR), 2020 WL 3545514 (SDNY June 29, 2020)

United States v. Harris, No. 06-CR-30058, 2020 WL 3483559 (CD Ill. June 26, 2020)

Woodard v. United States, No. 2:12-CR-105, 2020 WL 3528413 (ED Va. June 26, 2020)

 

United States v. Yellin, No. 3:15-CR-3181-BTM-1, 2020 WL 3488738 (SD Cal. June 26, 2020)

Cotton v. United States, No. CR 16-20222-8, 2020 WL 3488752 (ED Mich. June 26, 2020)

United States v. Shannon, No. 13 CR 535, 2020 WL 3489491 (ND Ill. June 26, 2020)

United States v. Arango, No. 15-CR-104 (JMF), 2020 WL 3488909 (SDNY June 26, 2020)

United States v. Champagne, No. 4:97-CR-089, 2020 WL 3472911 (D N.D. June 25, 2020)

 

United States v. Thompson, No. 92-30065-001, 2020 WL 3470300 (CD Ill. June 25, 2020)

United States v. Danson, No. CR 10-0051 (PLF), 2020 WL 3467887 (D D.C. June 25, 2020)

United States v. Gaitan, No. 18-CR-4662-BAS-1, 2020 WL 3469395 (SD Cal. June 25, 2020)

United States v. Fabris, No. 17-CR-00386-VC-2, 2020 WL 3481708 (ND Cal. June 25, 2020)

United States v. Ollie, No. CR 1:12-09, 2020 WL 3469754 (WD Pa. June 24, 2020)

 

United States v. Schaffer, No. 13-cr-00220-MMC-1, 2020 WL 3481562 (ND Cal. June 24, 2020)

United States v. Arroyo, No. EP-6-CR-479-PRM-1, 2020 WL 3512964 (WD Tex. June 24, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  Indeed, this BOP page on the FIRST STEP Act has updated its reporting of total grants of "Compassionate Releases / Reduction in Sentences," and it now reports 774 grants when last week the page reported 706 grants.  These data continue to confirm my sense that less than half of all the granted motions end up on Westlaw.

One final note: though there surely are lots of fascinating stories within all these grants, I was especially intrigued to see the name  David Kent Fitch as a grant recipient.  That name is familiar to me because I previously blogged about Mr. Fitch's case when he was sentenced to an extra 15+ years of federal imprisonment after a district judge decided at sentencing that he committed a murder for which was never charged. (The details are discussed in these prior posts: Punished (twice?!?) for an uncharged murder in federal court and Split Ninth Circuit affirms huge upward departure based on uncharged murder.)  

Some of many prior recent related posts on CR grants:

July 5, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Dare criminal justice reformers imagine SCOTUS without both Justice Alito and Justice Thomas?

Because there are no more juicy criminal law or sentencing cases left on the SCOTUS docket as an unusual Term winds down, I cannot help but spend time speculating about the future of the Court.  In an election year, of course, that includes imagining who might be appointed (and might be doing the appointing) for the next four years.  But this recent Fox News piece, headlined "Supreme Court rumor: Hugh Hewitt claims Alito retirement being floated," has me eager to imagine some SCOTUS transitions in the coming weeks.  Here are the (silly?) details:

Supreme Court speculation season is kicking into high gear. Conservative radio host Hugh Hewitt told listeners Wednesday morning that according to his sources, Supreme Court Justice Samuel Alito is considering retirement.

This came on the heels of a Washington Post report that said Justice Clarence Thomas "is privately seen by Trump’s aides as the most likely to retire this year," though he's given no indication of doing so.

Hewitt mentioned the Alito rumor on his show while talking to the author of that article, Robert Costa, who also had written about conservatives’ disappointment with decisions where Chief Justice John Roberts sided with the court’s liberal justices.  Costa noted that President Trump and Vice President Pence have cited the recent cases as proof that more conservative justices are needed, as he discussed rumors of possible contenders should Thomas step down.

"The stronger rumor is that Justice Alito is going to quit. Justice Thomas will never quit," Hewitt countered. Alito is 70, so if he retires he could be replaced with a much younger justice who would theoretically have decades on the court ahead.

But it is not clear whether the rumor is just that. Others doubt that either Thomas or Alito will retire. "I would not bet a lot of money on either of those possibilities," a person familiar with the court told Fox News.

Any imminent retirement would be risky for conservatives in the election year. If the current GOP-controlled Senate could not push through a replacement for any vacancy in time, it runs the risk for Republicans that the next nominee would be selected by a Democrat, if Joe Biden were to win the presidency. Further, Senate Republicans are far from guaranteed to hold the majority in the chamber next year.

Costa’s report did note how the White House and Republicans in the Senate are supposedly gearing up for a possible Supreme Court vacancy, but that was in reference to speculation that Thomas may step down.

One outside political adviser to Trump reportedly told Costa that if an opening were to emerge, Senate Majority Leader Mitch McConnell, R-Ky., would be ready to act swiftly to get the nominee confirmed. A favorite of his supposedly is 6th Circuit Court of Appeals Judge Amul Thapar, who previously served as a federal district judge and U.S. attorney in McConnell’s home state.

Hewitt also named several possible replacements for Alito, including 6th Circuit Judge Raymond Kethledge, who had been considered a strong candidate in the past.

Though neither Judges Kethledge or Thapar would likely be consistent votes for criminal defendants if they were to become Justices, I suspect both would be more likely to follow the varied voting pattern of Justice Gorsuch in criminal cases (noted here and here) than to follow in the legacy of Justices Alito and Thomas.  On the current Court, Justices Alito and Thomas are always most likely to favor state criminal powers over defendants in just about every setting.  It think it hard to imagine that they could or would ever be replaced with anybody more likely to vote so consistently against criminal defendants.

But I am not really daring to imagine a SCOTUS without Justices Alito and Thomas.  I sense they both like their work, and they probably both have good reason to believe they could keep at it for many years, perhaps many decades, to come.  So I fear criminal justice reformers who want a path through the Supreme Court should plan for at least two oppositional Justtices for many more years.

July 5, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

The new death penalty: COVID now a leading modern killer of California inmates on death row

As reported in this local article, headlined "Fifth San Quentin Death Row Inmate Dies During Prison COVID-19 Outbreak," the global pandemic is hitting California's death row hard these days. Here are the details:

While California has not executed a death row inmate since 2006, an out-of-control COVID-19 outbreak at San Quentin State Prison may have contributed to the death of a fifth condemned inmate on Saturday.

To date, more than 1,300 prisoners and 120 staff members have tested positive for COVID-19 at the state prison in Marin County. Among those who have fallen victims to the deadly illness have been San Quentin’s aging population on death row.

On Saturday, Dewayne Michael Carey, 59, died at an outside hospital from what appear to be complications related to COVID-19. An exact cause of death has not yet been determined. Carey was committed to CDCR on Dec. 16, 1996 as a condemned inmate from Los Angeles County for first-degree, special-circumstances murder. He was convicted of killing Ernestine Campbell in her Harbor City home. Her hands were tied to a staircase handrail and she had been stabbed to death....

On Friday, the California Department of Corrections and Rehabilitation identified two inmates who died while being treated for COVID-19 infections as Scott Thomas Erskine, 57, and Manuel Machado Alvarez, 59. Both died while being treated at San Francisco Bay Area hospitals. Erskine had been on death row since 2004 for the murder of two young boys in San Diego, while Machado had been on death row since 1989 for a string of crimes in Sacramento including rape and murder.

There have been two other deaths of condemned inmates deaths amid an exploding number of coronavirus cases at the prison. Richard Stitely, 71, was found unresponsive in his cell last week on June 29 and was confirmed Monday to have tested positive for COVID-19. He was sentenced for the 1990 rape and murder of a 47-year-old woman in Los Angeles County.

Joseph S. Cordova, 75, was found dead in his cell on July 1. He had been sentenced to death for the rape and murder of an eight-year-old girl in San Pablo....

“The prison was built in 1852. It’s the oldest prison in the state and it’s got old grill cells, they’re not closed doors,” said Assemblyman Marc Levine. Levine says the style of the prison cells allowed the disease to spread like wildfire. He has been a strong critic of the botched handling of the pandemic....

The CDCR said there are currently 722 people on California’s death row. While California doesn’t currently have a way to carry out capital punishment, inmates still continue to be sentenced to death. Last year, Gov. Gavin Newsom declared a moratorium on it shortly after taking office and the death chamber at San Quentin was dismantled. The state has executed only 13 murderers since 1978, the last in 2006.

As this article highlights, nobody has been executed in California in nearly 15 years. And, as this Wikipedia page details, only five condemned California inmates have been executed by the state over the last two decades. As I have noted in prior posts (some linked below), COVID has been killing many more total prisoners in the US than has capital punishment. And now in California, COVID is even killing more death row prisoners that the state is likely to execute anytime soon, perhaps ever.

Prior related posts:

July 5, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, July 3, 2020

Effective review of the 1994 Crime Bill's complicated legacy

USA Today has this effective new piece about the impact and import of the 1994 Crime Bill under the headline "Fact check: 1994 crime bill did not bring mass incarceration of Black Americans."  I recommend the whole thing, and here are excerpts:

The 1994 crime bill, signed by President Bill Clinton, was a grab-bag of crime-fighting measures, ranging from three-strike provisions mandating a life sentence for repeat offenders and funding for states to hire 100,000 additional police officers, to a Violence Against Women Act.

As chairman of the Judiciary Committee, then-Sen. Joe Biden drafted the bill, known formally as the Violent Crime Control and Law Enforcement Act of 1994, which was billed by Democrats as a major crackdown on crime....

Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice, a nonpartisan law and policy think tank, says one of the most significant and long-lasting impacts of the legislation was the enticement to states to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program....

Marc Mauer, executive director of The Sentencing Project, a campaign to end life imprisonment, told USA TODAY that the 1994 crime bill certainly encouraged the use of expanded incarceration by providing funding to the states for prison construction.  But he added that "mass incarceration was already well under way prior to the adoption of that legislation."...

Regarding mass incarceration of Black Americans, the issue plays out against the reality of longstanding racial disparities in imprisonment rates....  A report on "Racial Disparity in U.S. Imprisonment across States and Over Time," published in the Journal of Quantitative Criminology in 2019, found that a large increase in Black imprisonment is traceable in many states to the crack epidemic in the mid-1980s.

This disparity, the report says, began to ease starting in the 1990s.  "Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment," the report said....

Our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years.  Rather, it coincided with a slowdown in the annual grown of the state and federal prison population. Nor did it bring about mass incarceration of Black people, compared to before the bill was passed.

This USA Today piece references and links to some effective research on this topic, although it does not mention the papers recently published by the Council of Criminal Justice on this topic (one of which I authored).  These CCJ papers provide a similar accounting of the impact of the 1994 Crime Bill:

July 3, 2020 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Liberty, freedom, 2020 in incarceration nation ... discuss

An open thread for those who might be interested....

July 3, 2020 | Permalink | Comments (2)

"Proposition 47’s Impact on Racial Disparity in Criminal Justice Outcomes"

The title of this post is the title of this notable new and timely report from the Public Policy Institute of California.  Here is its "Summary":

While the COVID-19 pandemic has forced changes to correctional systems and law enforcement’s interactions with the community, widespread protests focused on the deaths of African Americans in police custody have intensified concern about racial and ethnic disparities in our criminal justice system.  In recent years, California has implemented a number of significant reforms that were not motivated by racial disparities but might have narrowed them in a number of ways. In this report, we extend our previous arrest work to examine the impact of Proposition 47, which reclassified a number of drug and property offenses from felonies to misdemeanors, on racial disparities in arrest and jail booking rates and in the likelihood of an arrest resulting in a booking.

While significant inequities persist in California and elsewhere, our findings point to a reduction in pretrial detention and a narrowing of racial disparities in key statewide criminal justice outcomes.

  • After Prop 47 passed in November 2014, the number of bookings quickly dropped by 10.4 percent.  As a result, California’s use of pretrial detention has declined.
  • Prop 47 also led to notable decreases in racial/ethnic disparities in arrests and bookings.  The African American–white arrest rate gap narrowed by about 5.9 percent, while the African American–white booking rate gap shrank by about 8.2 percent.  Prop 47 has not meaningfully changed the disparities in arrest and booking rates between Latinos and whites, which are still only a small fraction of the African American–white gap.
  • The narrowing of African American–white disparities has been driven by property and drug offenses.  The gap in arrests for these offenses dropped by about 24 percent and the bookings gap narrowed by almost 33 percent.  Even more striking, African American–white gaps in arrest and booking rates for drug felonies decreased by about 36 percent and 55 percent, respectively.
  • The likelihood of an arrest leading to a jail booking declined the most for whites, but this is attributable to the relatively larger share of white arrests for drug offenses covered by Prop 47. When we account for arrest offense differences, the decreases in the likelihood of an arrest being booked are similar across race and ethnicity.

We also looked at the cumulative impact of reforms and prison population reduction measures in California since 2009 on racial disparities in incarceration.  We found that the sizable reduction in the overall incarceration rate produced by these efforts has led to a narrowing of racial disparities in the proportion institutionalized on any given day.  In particular, the African American–white incarceration gap dropped from about 4.5 percentage points to 2.8 percentage points, a decrease of about 36 percent.

In addition to meaningfully reducing racial disparities in key criminal justice outcomes, the reclassification of drug and property offenses led to significant decreases in arrests and bookings, and hence pretrial detention. These decreases have the potential to reduce and/or redirect the use of public resources.  However, more work is needed.  Given evidence that the reforms have led to some increases in property crime, it is important for policymakers and practitioners to identify effective programs and policies that can reduce recidivism and maintain public safety while also continuing to address racial disparities.

July 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (2)

Thursday, July 2, 2020

As July starts, "Total Federal Inmates" as reported by BOP, down to 160,690

On the cusp of a (long) weekend when we celebrate American freedom, it seems fitting that America's federal government is still experiencing a declining population of persons being deprived of freedom through its prison system.  Specifically, today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" shows a continuation of historic declines: in a prior post here, I detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; though June, as detailed here, declines continued at a slightly reduced rate of about 950 persons on average.

As we start July, we start with a new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 160,690.  (For recent context, the BOP reported population dropped from 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25).)

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases many regions, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And so maybe, just maybe, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

July 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

"How Mandatory Minimums Are Weaponized"

The title of this post is the headline of this effective new opinion piece in the New York Times authored by Sandeep Dhaliwal. I recommend the piece in full and here are excerpts:

In the early morning hours of May 30, Colinford Mattis and Urooj Rahman were arrested in Brooklyn after a night of citywide protests in response to the killing of George Floyd.  They are charged with throwing a Molotov cocktail through the broken window of an unoccupied police car.  No one was hurt.  Both have plead not guilty, but if they are convicted of the array of federal charges leveled against them, there will be no judging involved when they are sentenced: They will face mandatory sentences of 45 years in prison.

Their story is just one example of how many senseless mandatory minimum penalties — blind to the facts of a case and the stories of the individual defendants — remain enshrined in law and must be changed....

At a time when progress is being made to address policing, the prosecution of Mr. Mattis and Ms. Rahman is a sobering reminder of other, deeply ingrained injustices in our systems of punishment. Even after modest improvements made by the 2018 First Step Act, the penalties for criminal activity are too often draconian, and prosecutors are too often keen to invoke them not because the defendants deserve the severity but to coerce them to plead guilty.  Reforms to eliminate mandatory minimums and rein in prosecutorial overreaching are vital to comprehensively reforming our overly punitive criminal justice systems, whose excessive harshness disproportionately affects communities of color....

Mandatory minimums grew popular in the 1970s and 1980s, as Congress and many states began adopting them for a slew of crimes — the biggest category being drug crimes.  Proponents said they were designed to deter the most serious types of criminal conduct.  But the penalties were inflexibly harsh, and it quickly became clear that many low-level offenders were being swept up and facing grossly excessive sentences.

The laws also suffered from another flaw: They were racist. The most infamous example is that it once took 100 times the amount of powder cocaine as crack cocaine to trigger the same mandatory minimum prison terms.  Other lesser-known examples abound.  People of color are disproportionately affected by mandatory minimums for the simple reason that they are disproportionately arrested and charged with crimes generally....

[T]he 45-year mandatory minimum penalty that Mr. Mattis and Ms. Rahman face is part of an all too familiar pattern of prosecution.  The goal is to coerce people to plead guilty to charges carrying harsh sentences in exchange for the dismissal of charges that mandate unconscionable ones.

The message that prosecutors send to them and to so many other defendants is clear: If you consider exercising your fundamental right to trial, we will seek penalties that are so excessive that you will think twice, because we have the power to take sentencing authority away from the judiciary.

When this regime of mandatory minimums began more than 30 years ago, 20 percent of federal criminal cases were resolved by trial.  Today, fewer than 3 percent are, and more than 97 percent of cases are resolved by pleas.

No rational observer would conclude that Mr. Mattis and Ms. Rahman should spend a majority of their lives behind bars for an alleged act that caused harm to no one.  To put the threat of a 45-year mandatory sentence into some perspective, according to data compiled by the U.S. Sentencing Commission, the median sentence for murder in the Second Circuit from 2015 through 2019 was 16 years.  The extreme 45-year sentences they face are a reminder that real people and families and communities are at the receiving end of these devastating penalties.

As lawmakers in Congress propose sweeping changes to policing spurred by society’s broad awakening to systemic racism, they must also make changes to eliminate federal mandatory minimums, rein in overcharging and help restore the right to trial.

July 2, 2020 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 1, 2020

Was Prez Trump's real political mistake not going bigger on criminal justice reform?

The question in the title of this post is prompted by this Axios piece headlined "Scoop: Trump regrets Kushner advice."  Here are some excerpts:

President Trump has told people in recent days that he regrets following some of son-in-law and senior adviser Jared Kushner's political advice — including supporting criminal justice reform — and will stick closer to his own instincts, three people with direct knowledge of the president's thinking tell Axios.

Behind the scenes: One person who spoke with the president interpreted his thinking this way: "No more of Jared's woke s***." Another said Trump has indicated that following Kushner's advice has harmed him politically.

Why it matters: This could be the final straw for federal police reform legislation this year, and it could usher in even more incendiary campaign tactics between now and November.

Details: The sources said the president has resolved to stick to his instincts and jettison any policies that go against them, including ambitious police reform.

  • Trump dipped his toe into police reform under pressure after a Minneapolis police officer killed George Floyd — with an executive order that activists considered toothless  but he will likely go no further to restrain law enforcement officers, according to senior administration officials.
  • Trump has made clear he wants to support law enforcement unequivocally, and he won't do anything that could be seen as undercutting police....
  • In response to this reporting, White House press secretary Kayleigh McEnany said in a statement, "President Trump is very proud of the historic work that he's done to benefit all communities.  The First Step Act made historic strides toward rectifying racial disparities in sentencing while his executive order to secure America's streets works with our nation's heroic police officers to ensure we have safe policing and safe communities."...

Between the lines: Trump never really wanted criminal justice reform, according to people who have discussed the subject with him privately.  He's told them he only supported it because Kushner asked him to.  Though he has repeatedly trumpeted it as a politically useful policy at times.

  • Trump now says privately it was misguided to pursue this policy, undercutting his instincts, and that he probably won't win any more African American support because of it.
  • "He truly believes there is a silent majority out there that's going to come out in droves in November," said a source who's talked to the president in recent days.

Anyone who has followed Prez Trump through the years should not be surprised by reporting that he has never been a real fan of criminal justice reform or that he is eager to praise and promote the police.  But Prez Trump did play a key role in getting the FIRST STEP Act enacted back in 2018 and it has seemed his campaign had wanted to make this fact a significant talking point in the 2020 political season.  But, in light of Prez Trump's poor recent poll numbers and his disaffinity for bold racial justice efforts, this story suggests he may be giving up on the prospect of securing any political advantage from criminal justice reform efforts.

But, as the question in the title of this post is meant to suggest, I think Prez Trump may be getting little political credit for criminal justice reform because he failed to really go big and because his frequent "tough" talk eclipses his reform efforts.  Had Prez Trump pushed dramatic and historic reforms — by, say, advocating for federal marijuana reforms and pushing for a federal expungement statute and creating a clemency council in the White House — he might well have burnished a real reputation as a real reformer.  And if Prez Trump stressed how these kinds of reforms advanced racial justice and racial equity in our criminal justice system, I really think he could have secured significant political benefits from being much more progressive on these issues than Joe Biden has historically been.

July 1, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Spotlighting our unique times as feds seek to resume execution this month

The New York Times has this article detailing that the first planned executions in nearly two decades are coming at quite a time. The piece is fully headlined "Federal Executions to Resume Amid a Pandemic and Protests: The administration is pressing ahead with the first federal execution in 17 years as demonstrators seek changes to the criminal justice system and lawyers have trouble visiting death-row clients."  Here are excerpts (with one line emphasized for commentary):

Daniel Lewis Lee is scheduled to be executed in less than two weeks, but he has been unable to see his lawyers for three months because of the coronavirus pandemic.

Mr. Lee, sentenced to death for his involvement in the 1996 murder of a married couple and their 8-year-old daughter, has been limited to phone calls, which one of his lawyers, Ruth Friedman, said she feared would jeopardize her client’s confidentiality.  And amid a global pandemic that has put travel on hold, her team has been unable to discuss pressing issues with Mr. Lee, conduct investigations, or interview witnesses in person.  “I can’t do my job right. Nobody can,” Ms. Friedman said from her apartment 600 miles away, in Washington, D.C., where she is working to commute Mr. Lee’s sentence to life in prison.

If she is unsuccessful, Mr. Lee, 47, will be the first federal death row inmate to be executed in 17 years.  Last year, Attorney General William P. Barr announced that the Justice Department would resume executions of federal inmates sentenced to death.  Two weeks ago, Mr. Barr scheduled the first four executions for this summer, all of men convicted of murdering children, and to be carried out at the federal penitentiary in Terre Haute, Ind.  On Monday, the Supreme Court cleared the way for the federal executions to proceed, rejecting arguments against the use of a single drug to carry out the sentence by lethal injection.

As the pandemic worsened, many states, including Texas and Tennessee, postponed scheduled executions of prisoners sentenced under state law. Since the pandemic began, there has been only one execution at a state prison, in Bonne Terre, Mo. The state capital trial in Florida for Nikolas Cruz, the gunman who killed 17 at Marjory Stoneman Douglas High School in 2018, was delayed indefinitely. Courthouses closed or moved to remote operations to accommodate social distancing....

In announcing the schedule for this summer’s federal executions, Mr. Barr said the death penalty was the will of the American people as expressed through Congress and presidents of both parties, and that the four men scheduled to die “have received full and fair proceedings under our Constitution and laws.”

The summer’s scheduled executions mesh with President Trump’s increasing election year efforts to cast himself as a “law and order” leader even as his administration faces mounting criticism for its response to protests over systemic racism in the policing system and a deadly pandemic.

Mr. Lee, who is scheduled to be put to death on July 13, was a white supremacist who has since disavowed his ties to that movement. The Trump campaign has seized on the political ramifications of Mr. Lee’s planned execution, criticizing the president’s presumptive Democratic opponent, former Vice President Joseph R. Biden Jr., for reversing his earlier support for the death penalty “even for white supremacist murderers!”

Though Mr. Biden now opposes capital punishment, he played a central role as a senator in the passage of the 1994 crime bill that expanded the use of the federal death penalty.  Mr. Trump has repeatedly attacked Mr. Biden for his record on criminal justice issues.

Mr. Biden and Mr. Trump are far from the first presidential candidates to spar over the death penalty as a political tactic. In 1992, then-Gov. Bill Clinton denounced President George Bush for his inaction on crime.  To affirm his support for the death penalty, he flew home to Arkansas in the midst of campaigning to personally see to the execution of a man who had been convicted of murdering a police officer.

But today’s candidates are vying for the White House amid nationwide protests over racism in the criminal justice system. Black people make up 42 percent of those on death row, both among federal inmates and over all, compared to 13 percent of the general population.

Though the four inmates scheduled to be executed this summer are white, critics of the death penalty warned that resumption of federal executions would only exacerbate the policy’s discrimination against people of color. “It would be nice if they used those resources to address the widespread problem of police violence against Black people,” said Samuel Spital, director of litigation at the N.A.A.C.P. Legal Defense & Educational Fund. Mr. Spital also questioned why the Justice Department did not use those resources allocated to resume federal executions to protect prisons from the coronavirus.

Imposing the death penalty amid the pandemic holds risks for those carrying out the execution: Doing so may require dozens of individuals, including corrections officers, victims and journalists, to come in close contact. The Bureau of Prisons directed that face masks would be required for all individuals throughout the entire procedure, with violators asked to leave the premises. Social distancing will be practiced “to the extent practical,” but the bureau conceded that limited capacity of the media witness room might preclude their ability to maintain a six-foot distance between observers....

Several family members of Mr. Lee’s victims, his trial's lead prosecutor, and the trial judge have all publicly opposed Mr. Lee’s execution. His co-defendant, described as “the ringleader” by the judge, was given a life sentence without parole.

In a statement, Mr. Barr maintained that the decision to reinstate federal capital punishment was owed “to the victims of these horrific crimes, and to the families left behind.” But Monica Veillette, who lost her aunt and cousin to Mr. Lee’s crimes, does not believe that this execution is for her family. She has asthma, and both her grandmother and parents are older. If they travel to Indiana for the execution from Washington State and Arkansas, each of them could be put at risk of contracting the virus. “If they owe us anything, it’s to keep us safe now by not pushing this execution through while people are still scrambling to access disinfectant spray and proper masks,” she said. “Haven’t enough people died?”

I have emphasized the fact that all of the defendants selected for execution dates by AG Barr are white because I suspect they were chosen to be the first ones to be executed, at least in part, because of their race. If I am right in this suspicion, I think AG Barr acted unconstitutionally. I am not sure if these defendants are pursuing an equal protection claim on this ground, but I sure think they should.

July 1, 2020 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Some additional helpful resources on compassionate release

As regular readers know, I have been making a weekly habit of posting lists of federal court rulings granting sentencing reductions pursuant to what is known colloquially as the federal compassionate release statute (recent examples here and here and here).  I surmise from feedback that these lists serve as helpful resources, and I am happy here to be able note here some additional materials that can aid those seeking compassionate releases.

For starters, the folks at FAMM have long been leaders on this front, and they have collected an extraordinary array of materials at this link.  In addition, the Amend at UCSF has put together here a set of original resources "to aid health care professionals/advocates in requesting compassionate release for incarcerated patients."  Especially notable are updated versions of a "Compassionate Release Sample Narrative Letter and Checklist Letter."

Last but certainly not least, I am pleased to report that Michael Gniwisch, a Penn Law student and legal intern at the Aleph Institute, gathered together a number of compassionate release cases from this blog and plugged them into a spreadsheet.  This detailed spreadsheet sorts the cases by district, nature of conviction, time left, illness, outbreak at facility, and exhaustion.  Michael's helpful work should make it easier for attorneys to find useful precedents, and Michael plans to keep updating the spreadsheet.  I am grateful for his efforts.

UPDATE: I am disappointed I forgot in this initial post to also flag this latest and timely FSR issue and some of the articles therein.  This issue covers, in the words of Jalila Jefferson-Bullock, how "amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration."

July 1, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, June 30, 2020

"Rural Spaces, Communities of Color, and the 'Progressive' Prosecutor"

The title of this post is the title of this new paper authored by Maybell Romero available via SSRN.  Here is its abstract:

The concept of the “progressive prosecutor” has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large.  The success of candidates declaring themselves progressive prosecutors has been tracked with much excitement by those who have sincere interests in criminal justice reform and has been lauded in many reform-minded camps.

These progressive prosecutors, while located throughout the country, seem to have one geographic commonality — they generally hail from large cities or even urban metroplexes: These include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago.  In the meantime, disproportionate contact between police and minorities has increased in the rural reaches of the country, with prosecutors seemingly growing less reform minded with rates of incarceration in rural jurisdiction increasing.

This paper joins others in casting suspicion upon the notion of progressive prosecution, questioning whether such an appellation should exist given the current nature of the job in the United States.  It also serves as a warning; that while such prosecutors have seemed to become more common in large cities, that practitioners and scholars should not forget that reforms that occur in large jurisdictions sometimes do not extend to those suffering injustices in small communities.

June 30, 2020 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Persistent prison problems as COVID-19 continues to course through carceral environments

It has been a few weeks since I rounded up, in this post and this post, some headlines and stories about incarceration nation's continued struggles with the coronavirus pandemic.  But ugly realities in carceral settings have not gone away, nor has the good reporting and research.  The first few pieces below are extended or updated reviews of national prison problems, the others are just a few media pieces providing snapshots of recent developments in a few particular jurisdictions:

From The Marshall Project, "A State-by-State Look at Coronavirus in Prisons"

From the Prison Policy Initiative, "What do we know about the spread — and toll — of the coronavirus in state prisons?"

From The Sentencing Project, "COVID-19 in Juvenile Facilities"

 

From the Alabama Political Reporter, "Sixth Alabama inmate dies after positive COVID-19 test"

From KWTX, "COVID-19 has claimed dozens of lives in Texas prisons"

From Lake County Record-Bee, "California prisons are COVID hotbeds despite billions spent on inmate health"

From the Miami Herald, "2 in Homestead are first female Florida prisoners to die of COVID-19, after 21 male fatalities"

From the Nashville Post, "CoreCivic reports $25M in profits as COVID infects 2,500+ inmates"

From New Mexico In Depth, "Massive COVID-19 outbreak at a southern NM prison hits just one type of inmates — sex offenders. That’s by design."

From WBEZ, "Democrats And Republicans Are Critical Of Pritzker’s Handling Of COVID-19 In Prisons"

June 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Judicial Authority under the First Step Act What Congress Conferred through Section 404"

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

The First Step Act of 2018 promised relief to inmates serving disproportionately long sentences for cocaine base distribution. Section 404, the focus of this article, seemed straight-forward.  But in the spring and summer of 2019, district judges began reviewing § 404 cases and reaching dissonant results.  Appeals followed, focused on four questions of judicial authority: (1) Who may judges resentence?; (2) May judges engage in plenary resentencing or merely sentence reduction?; (3) May judges resentence all concurrent criminal convictions or only crack cocaine convictions?; and (4) Must judges adopt the operative drug quantity from the original sentencing?

Today, the law of § 404 remains incomplete in every circuit.  This article reviews the legislative history, text, and legal context of § 404.  It finds that Congress intended broad judicial authority in § 404 resentencings.

June 30, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, June 29, 2020

Is it a death penalty success or failure when worst-of-the-worst plead guilty to avoid capital trial?

The question in the title of this post is prompted by this AP story out of California headlined "Accused ‘Golden State Killer’ admits murders, will avoid death penalty."  Here are the basics:

A former police officer who terrorized California as a serial burglar and rapist and went on to kill more than a dozen people while evading capture for decades pleaded guilty Monday to murders attributed to a criminal dubbed the Golden State Killer.

Joseph James DeAngelo Jr. had remained almost silent in court since his 2018 arrest until he uttered the word “guilty” in a hushed and raspy voice multiple times in a plea agreement that will spare him the death penalty for a life sentence with no chance of parole.

DeAngelo, 74, has never publicly acknowledged the killings, but offered up a confession of sorts after his arrest that cryptically referred to an inner personality named “Jerry” that had apparently forced him to commit the wave of crimes that ended abruptly in 1986. “I did all that,” DeAngelo said to himself while alone in a police interrogation room after his arrest in April 2018, Sacramento County prosecutor Thien Ho said....

DeAngelo, seated in a wheelchair on a makeshift stage in a university ballroom that could accommodate hundreds of observers a safe distance apart during the coronavirus pandemic, acknowledged he would plead guilty to 13 counts of murder and dozens of rapes that are too old to prosecute. “The scope of Joseph DeAngelo’s crimes is simply staggering,” Ho said. ”Each time he escaped, slipping away silently into the night.”...

DeAngelo, a Vietnam veteran and a grandfather, had never been on the radar of investigators who spent years trying to track down the culprit. It wasn’t until after the crimes ended that investigators connected a series of assaults in central and Northern California to slayings in Southern California and settled on the umbrella Golden State Killer nickname for the mysterious assailant.

DeAngelo was caught after police used DNA from crime scenes to find a distant relative through a popular genealogy website database and then built a family tree that eventually led them to him. They then tailed DeAngelo and were able to secretly collect DNA from his car door and a discarded tissue to get an arrest warrant....

He tied up husbands and boyfriends and told them he’d kill them if they made a sound while he assaulted the women. Eventually he slipped off into the dark on foot or by bicycle and even managed to evade police who at times believed they came close to catching him. DeAngelo knew the territory well. He had started on the police force in the San Joaquin Valley farm town of Exeter in 1973, where he is believed to have committed his first burglaries and first killing....

Victims’ family members were anxious about what to expect before the court hearing began. “I’ve been on pins and needles because I just don’t like that our lives are tied to him, again,” said Jennifer Carole, the daughter of Lyman Smith, a lawyer who was slain in 1980 at age 43 in Ventura County. His wife, 33-year-old Charlene Smith, was also raped and killed.

A guilty plea and life sentence avoids a trial or even the planned weeks-long preliminary hearing. The victims expect to confront him at his sentencing in August, where it’s expected to take several days to tell DeAngelo and Sacramento County Superior Court Judge Michael Bowman what they have suffered. Gay and Bob Hardwick were among the survivors looking forward to DeAngelo admitting to their 1978 assault.

The death penalty was never realistic anyway, Gay Hardwick said, given DeAngelo’s age and Gov. Gavin Newsom’s moratorium on executions. “He certainly does deserve to die, in my view, so I am seeing that he is trading the death penalty for death in prison,” she said. “It will be good to put the thing to rest. I think he will never serve the sentence that we have served — we’ve served the sentence for 42 years.”

A person who murdered more than a dozen and raped many more would certainly seem to qualify as one of the "worst-of-the-worst" offenders that are often said to be those for whom the death penalty is reserved. But DeAngelo is not getting the ultimately penalty of death, so this case is arguably a story of death penalty failure.  And yet, without the death penalty as a (remote) possibility, DeAngelo would have arguably had no reason to plead guilty and spare victims the pain of a trial and other court proceedings. And so maybe this case is still a story of death penalty success.

June 29, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

"The Limits of Fairer Fines: Lessons from Germany"

The title of this post is the title of this new report from the The Criminal Justice Policy Program at Harvard Law School.  Here is a small part of the start and end of the long "Executive Summary" from the 156-page report:

Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses — often in addition to other punishment such as probation or jail — and they charge fees (also referred to as costs or surcharges) to fund the court and other government services.  The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments.  Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions.  When people are unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.

In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform.  The most direct efforts seek to repeal revenue-raising fines and fees.  More common, however, is the adoption of requirements that courts assess people’s ability to pay at the sentencing hearing, and/or before punishing people for nonpayment.  Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.

It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States.  Day fines are used in over 30 countries in Europe and Latin America to calculate fine amounts that are tailored to people’s ability to pay.   Day fines are set using a two-part inquiry.  Courts first consider the nature and seriousness of the offense, measured in units or days.  For example, a common low-level misdemeanor may receive 20 units.  Courts then calculate how much the person can pay per day/unit based on their individual financial circumstances.  The amount a person must pay per day is called the daily rate.  Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may be required to pay $20 per unit for a total fine of $400.  Day fines provide a framework for setting a fine based not just on the nature of the offense, but also on how much a fine will impact the person given their financial circumstances.  The resulting fines are theoretically more fair because people of different means experience the fines similarly.  A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral of negative consequences that people face upon nonpayment.

Despite the theoretical resonance of day fines as a potential solution, there has been very limited information available about how this model works in practice.  This project fills this knowledge gap....

Germany’s example provides a useful starting point for jurisdictions in the United States that are considering the day fines model.  Germany’s experience demonstrates the need for strong political support, public education, and judicial buy-in, as well as a robust daily rate formula that will ensure day fines can be set at levels that people can afford to pay.  Germany also shows us that considering ability to pay at sentencing in every case is possible without being unduly cumbersome.  When considering day fines, jurisdictions should be thoughtful about their own political, socio-economic, and cultural realities, as well as the specific problems they are trying to address and how day fines would fit into their existing misdemeanor system.

This Report begins with a detailed overview of day fines in Germany, including specific policy details about the system’s design.  In the second part, we analyze that system and identify areas of consideration for those who might implement day fines in the United States.  We conclude with a decision guide for jurisdictions and advocates considering day fines.

June 29, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentencing around the world | Permalink | Comments (0)

SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol

As reported in this AP article, the "Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August."  Here is more:

The justices rejected an appeal from four inmates who were convicted of killing children.  Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward.

The court's action leaves no obstacles standing in the way of the executions, the first of which is scheduled for July 13. The inmates are separately asking a federal judge in Washington to impose a new delay on their executions over other legal issues that have yet to be resolved.

The activity at the high court came after Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions. Three of the men had been scheduled to be put to death when Barr first announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain....

The federal government’s initial effort was put on hold by a trial judge after the inmates challenged the new execution procedures, and the federal appeals court in Washington and the Supreme Court both declined to step in late last year. But in April, the appeals court threw out the judge’s order. The federal prison in Indiana where the executions would take place, USP Terre Haute, has struggled to combat the coronavirus pandemic behind bars. One inmate there has died from COVID-19.

The inmates scheduled for execution are: Danny Lee, who was convicted in Arkansas of killing a family of three, including an 8-year-old; Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman; Dustin Lee Honken, who killed five people in Iowa, including two children; and Keith Dwayne Nelson, who kidnapped a 10-year-old girl who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl with a wire.

Three of the executions — for Lee, Purkley and Honken — are scheduled days apart beginning July 13. Nelson’s execution is scheduled for Aug. 28. The Justice Department said additional executions will be set at a later date. Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

The Supreme Court's decision here does not guarantee that federal executions will go forward in two weeks, but it does guarantee there will be lots and lots of litigation in those two weeks as defense attorneys press other legal claims and federal prosecutors respond. The fact that the cert vote here was 7-2 could be viewed in various ways as a forecast of how the Justices might approach other issues surely to be brought before them by these defendants with pending execution dates. But I have come to assume that there are now five pretty solid SCOTUS votes to allow capital punishment administration to move forward, so there would seem to be a pretty solid chance the federal government will be getting back to executions shortly.

Prior related posts:

June 29, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sixth Circuit panel rejects Romell Broom's constitutional arguments that Ohio cannot try again to execute him after botched first attempt

I somehow missed that last week a Sixth Circuit panel handed down a notable unanimous ruling on a novel (and disconcerting) issues of capital punishment administration . Even long-time readers may have forgotten about the case of Romell Broon, but the start of the Sixth Circuit ruling in Broom v. Shoop, No. 19-3356 (6th Cir. June 23, 2020) (available here), provides the still-remarkable essentials:

In an infamous September 2009 incident, the state of Ohio tried to execute death-row inmate Rommel Broom, and failed.  More specifically, the state tried to execute Broom by way of lethal injection, but was forced to abandon the effort when the execution team concluded — two hours into the process — that it could not maintain a viable IV connection to Broom’s veins.  The state then returned Broom to his cell, to await a second execution attempt on another day.  That second execution attempt has not yet happened, however, because the parties have spent the last eleven years litigating whether the U.S. Constitution bars Ohio from ever trying to execute Broom again — Broom relies on both the Eighth Amendment’s prohibition on “cruel and unusual” punishment and the Fifth Amendment’s prohibition on “double jeopardy.”  The state courts, including the Ohio Supreme Court, have rejected Broom’s contentions on the merits, as did the district court below on habeas review.  Broom’s case now comes before us.

We in no way condone Ohio’s treatment of Broom; that it took two hours of stabbing and prodding for the state to realize that it could not maintain a viable IV connection to Broom’s veins is disturbing, to say the least.  But because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) permits us to reverse state court merits decisions in only a narrow set of circumstances, and because the Ohio Supreme Court’s decision rejecting Broom’s constitutional claims on the merits does not fall within that set of circumstances here, we AFFIRM the district court’s judgment denying Broom habeas relief.

Ohio has not executed anyone in two years due in part to litigation and uncertainty over execution protocols, and Broom recently had his 2020 execution date pushed back to March 2022.  I could discuss at great length not only why this case is so jurisprudentially interesting, but I continue to fear that SCOTUS will not be inclined to take up this case.  And for those interested in more coverage of all the facts and law, here are posts on the case going back more than a decade now:

June 29, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 28, 2020

"Sentencing Rape A Comparative Analysis"

The title of this post is the title of this new book authored by Graeme Brown for which I received an announce from the publisher offering a discount for SL&P readers.  Here are the details:

This book presents an in-depth comparative study of sentencing practice for rape in six common law jurisdictions: England and Wales, Scotland, Ireland, Canada, New Zealand, and South Africa.  It provides a thorough review of the medical literature on the physical and psychological effects of rape, the legal and philosophical literature on the seriousness of the offence, and the victim’s role in sentencing.  Given the increasingly common practice of perpetrators using mobile and online technologies to film or photograph the commission of sexual offences, the book examines recent socio-legal research on technology-facilitated sexual violence and considers the implications for sentencing.

By building on recent scholarship on judicial decision making in sentencing and case law — comprising over 250 decisions of the relevant appellate courts — the book explores and critically analyses judicial approaches to rape sentencing. The analysis is undertaken with a view to suggesting possible reforms to rape sentencing in ‘non-guideline’ jurisdictions.  In so doing, this book seeks to establish general principles for sentencing rape, assisting in the imposition of proportionate sentences.

This book will be of interest to judges and practising lawyers; to those researching criminal law, criminal justice, criminology, and gender studies; and to policy makers, including sentencing councils and commissions, in common law jurisdictions worldwide.

Graeme Brown is a solicitor and Assistant Professor in Criminal Law at Durham Law School, Durham University.

May 2020   |   9781509917570   |   328pp   |   Hbk   |    RSP: £75  

Discount Price: £60.  Order online at www.hartpublishing.co.uk – use the code HE6 at the checkout to get 20% off your order!

June 28, 2020 in Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (0)

Saturday, June 27, 2020

"Sentencing Disparities and the Dangerous Perpetuation of Racial Bias"

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

This Article addresses the role that racial disparities — specifically sentencing disparities — play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States.  As documented in the news and by often humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American.  This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality.  This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on.

June 27, 2020 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Is Prez Trump trying to convince himself to have the guts to pardon Roger Stone?

The question in the title of this post was my first thought upon seeing this news piece headlined "Trump tweet fuels speculation of Stone pardon: The tweet came after a judge ruled Stone would report to prison in July."  Here are the details:

President Donald Trump further fueled speculation Saturday morning that he plans to pardon longtime friend and adviser Roger Stone.

After a judge on Friday gave Stone a surrender date of July 14 -- he had sought to report to the Georgia prison on Sept. 3 -- Trump tweeted a story about a petition for the president to pardon Stone as he faces a sentence of 40 months for lying to Congress and misleading investigators on several key elements of their probe into Russian meddling in the 2016 election.

On Saturday, Trump retweeted a message saying "IT’S TIME TO #PardonRogerStone"

This is not the first time a Trump tweet has raised the prospect of a Stone pardon.  Earlier this month, on June 4, the president tweeted that "Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!"

With Stone now seemingly having a hard prison report date in three weeks, Prez Trump is going to have to make a clemency decision sooner rather than later. If Prez Trump is really eager to keep Stone out of prison, I hope he might at least looks to include Stone with some additional meritorious clemency grants as he did back in February when commuted the sentences of sentences of three women along with Rod Blagojevich.

Prior related posts:

June 27, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 26, 2020

"How to have less crime with less punishment"

The title of this post is the headline of this new Hill commentary authored by Benjamin van Rooij and Adam Fine.  Here are excerpts:

For too long, America has been under the illusion that punishment is an effective medicine against crime.  This has led to the largest prison population in the world, a system of mass incarceration that has destroyed families and neighborhoods caught in circles of arrests, imprisonment, probation, and legal discrimination.  And with very little to show for it. It did not help win the War on Drugs or prevent the current opioid epidemic, nor did it play a significant role in the crime declines in cities like New York.  The criminal justice system does not even help to prevent crime through incapacitation, by locking offenders out of society, as this, in the most positive estimate, reduces crime by only 0.4 percent.

So, the idea that we can only get law and order through punishment is simply flawed. Surely, there should not be impunity, and punishment is definitely part of any law and order mix. But, it should just not be its chief focus. There are much better ways to prevent crime....

If we simply make crime harder, we need less police and less punishment.  There is a clear road ahead here. If you want to reduce homicide and many forms of gang violence, and many suicides while you’re at it, just ban guns, or at least severely restrict access to them.  Just consider how none of America’s top-ten mass shootings occurred during the federal ban on assault rifles.  And this has the added advantage that we deescalate police work, as cops have less reason to be afraid and less reason to act like soldiers in war zones.

Next, we can ensure that people do not have to resort to crime in the first place.  We clearly know that when there is less poverty, there is less crime, and when people get to finish their education, again, less crime. So let’s fight crime by fighting poverty and investing in education.  And for those who do resort to crime, we can turn to our next layer of defense: treatment.  Perhaps the most surprising thing we learned when we looked through decades of research was that rehabilitation programs that provide cognitive therapy, aggression training and substance abuse treatment actually work very well.  They are shown to reduce crime between 18-60 percent.

Finally, we can also have less crime if more people think the law is legitimate.  In fact, the way we perceive the criminal justice system is directly related to our willingness to engage in crime.  If people feel that the legal system treats them with respect, that it listens to their concerns, and that it acts impartially and neutrally, they will be less likely to commit a crime.  We must make our legal system fair and just because in doing so, we not only end the racism and brutality that have existed for so long, but we also fight crime.

This is just the tip of the iceberg: there are many insights about how to reduce crime based on scientific evidence. Yet most of these are ignored in our politics and in our public media.  Why do we rely on scientists to fight the coronavirus, but fail to heed their findings when addressing crime and public safety?

We have simply fooled ourselves in believing that punishment and tough-on-crime are the keys.  We have given in to our punishment reflex. It’s time to overcome our gut feelings, follow the evidence, and build a criminal justice system that starts to deliver the justice and safety it so direly owes us all.

June 26, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (3)

"COVID-19 and Homicide: Final Report to Arnold Ventures"

The title of this post is the title of this very interesting new empirical paper that I can across yesterday. The 13-page work is authored by Thomas Abt, Richard Rosenfeld and Ernesto Lopez.  Here is its summary:

Did crime rates decline in response to the actions taken to address the COVID-19 pandemic?  Several reports have suggested that they did, in the United States and other nations (e.g., Jacoby, Stucka, and Phillips 2020; Mohler, Bertozzi, Carter, et al. 2020; Police Executive Research Forum 2020; Semple and Ahmed 2020).  Some cautioned that crime was not falling at the same pace everywhere, however, and in some US cities it was rising (Dolmetsch, Pettersson, Yasiejko 2020). These accounts are typically based on small samples of cities and brief time periods.

By contrast, the current study, to our knowledge the largest to date, compares monthly homicide rates in 64 US cities during January through June of 2020 with the previous three-year average homicide rates during the same months. We focus on homicide because it is the most serious and reliably measured criminal offense.  We find that, compared with the previous three-year average, homicide rates decreased during April and May of 2020.  Not all cities experienced a homicide decline, however, and the decreases during April were roughly twice as large as those in May.  With few exceptions, we did not find sizable differences between the cities in which homicides dropped and those where they rose.  We conclude by discussing several reasons why homicide rates in US cities might increase over the next several months.

June 26, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

More great new Politico Magazine coverage now on "Justice Reform: Prison Conditions"

In this post a couple of months ago, I noted that the Politico Magazine had produced a bunch of great new articles on criminal justice reform issues under the heading "Justice Reform: The Decarceration Issue."  Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Prison Conditions."  Here are the lengthy pieces under this heading with their full headlines:

The Lifers Changing Prisons From Inside: Over 40 years, the National Lifers of America rewrote the rules of prison reform. Now they've hit a new obstacle: connecting with the outside world during a pandemic.

San Quentin’s Breakthrough Prison Newsroom: A huge podcast hit and a revived newspaper mean that policymakers really have to listen. 

10 Races That Could Change the System: Forget Washington. The real challenges to the system are coming from cities and states. Here are the ones to watch.

How U.S. Prisons Became Ground Zero for Covid-19: Tight quarters, strained hygiene practices and guards moving to and from their community put prisons at risk of becoming coronavirus hotbeds.

Prior related post:

June 26, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Thursday, June 25, 2020

Time for another long list of (mostly COVID-influenced) federal sentence reductions using § 3582(c)(1)(A)

I must admit that I might be starting to get just a bit fatigued by my repeated listings of new grants of federal sentence reductions using § 3582(c)(1)(A).  But these lists represent such a special kind of good news for federal prisoners and those that care about them, and I am not at all tired of seeing this heartening news each week as I assemble dozens of recent grants.  So:

United States v. Morrison, No. 19-cr-284-PWG, 2020 WL 3447757 (D Md. June 24, 2020)

United States v. Martin, No. DKC 04-0235-5, 2020 WL 3447760 (D Md. June 24, 2020)

United States v. Davis, 2:15-cr-00062-TLN, 2020 WL 3443400 (ED Cal. June 23, 2020)

United States v. Oaks, No. RDB-17-0288, 2020 WL 3433326 (D Md. June 23, 2020)

United States v. Smith, No. 4:18CR805 HEA, 2020 WL 3429150 (ED Mo. June 23, 2020)

 

United States v. Platte, No. 05-cr-208-JD-KJM-2, 2020 WL 3441979 (ED Cal. June 22, 2020)

United States v. Salvagno, No. 5:02-CR-51 (LEK), 2020 WL 3410601 (NDNY June 22, 2020)

United States v. Common, No. 17-cr-30067, 2020 WL 3412233 (CD Ill. June 22, 2020)

United States v. Faafiu, No. CR 17-0231 WHA, 2020 WL 3425120 (ND Cal. June 22, 2020)

United States v. Ladson, No. 04-697-1, 2020 WL 3412574 (ED Pa. June 22, 2020)

 

United States v. Austin, No. 06-cr-991 (JSR), 2020 WL 3447521 (SDNY June 22, 2020)

United States v. Lee, No. 1:95-cr-58 (LMB), 2020 WL 3422772 (ED Va. June 22, 2020)

United States v. Bayuo, No. 15-cr-576 (JGK), 2020 WL 3415226 (SDNY June 20, 2020)

United States v. Richardson, No. 2:17-cr-00048-JAM, 2020 WL 3402410 (D Conn. June 19, 2020)

United States v. Garcia-Zuniga, No. 19cr4139 JM, 2020 WL 3403070 (SD Cal. June 19, 2020)

 

United States v. Jackson, No. 2:18-cr-86-PPS, 2020 WL 3396901 (ND Ind. June 19, 2020)

United States v. Calabrese, No. 16-30033-TSH, 2020 WL 3316139 (D Mass. June 18, 2020)

United States v. Clark, No. 4:08-CR-00096, 2020 WL 3395540 (SD Iowa June 17, 2020)

United States v. Joseph, No. 18-CR-156, 2020 WL 3270885 (ED Wisc June 17, 2020)

United States v. Johnson, No. JKB-14-356, 2020 WL 3316221 (D Md. June 17, 2020)

 

United States v. Kess, No. ELH-14-480, 2020 WL 3268093 (D Md. June 17, 2020)

United States v. Quinn, No. 91-cr-00608-DLJ-1 (RS), 2020 WL 3275736 (ND Cal. June 17, 2020)

United States v. Cruz, No. 3:17-cr-00075-JO-4, 2020 WL 3265390 (D Ore. June 17, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  Indeed, this BOP page on the FIRST STEP Act has updated its reporting of total grants of "Compassionate Releases / Reduction in Sentences," and it now reports 706 grants when last week the page reported 650 grants.  These data confirm my sense from various sources that around 50 sentence reductions are now being granted each week of the COVID era.

Prior recent related posts since lockdowns:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Failing Grades: States’ Responses to COVID-19 in Jails & Prisons"

Newsletter_covidgrading_2.111929The title of this post is the title of this notable new ACLU and Prison Policy Initiative report by Emily Widra and Dylan Hayre.  Here is how it gets started:

When the pandemic struck, it was instantly obvious what needed to be done: take all actions possible to “flatten the curve.”  This was especially urgent in prisons and jails, which are very dense facilities where social distancing is impossible, sanitation is poor, and medical resources are extremely limited.  Public health experts warned that the consequences were dire: prisons and jails would become petri dishes where, once inside, COVID-19 would spread rapidly and then boomerang back out to the surrounding communities with greater force than ever before.

Advocates were rightly concerned, given the long-standing and systemic racial disparities in arrest, prosecution, and sentencing, that policymakers would be slow to respond to the threat of the virus in prisons and jails when it was disproportionately poor people of color whose lives were on the line.  Would elected officials be willing to take the necessary steps to save lives in time?

When faced with this test of their leadership, how did officials in each state fare? In this report, the ACLU and Prison Policy Initiative evaluate the actions each state has taken to save incarcerated people and facility staff from COVID-19.  We find that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far.  The map below shows the scores we granted to each state, and our methodology explains the data we used in our analysis and how we weighted different criteria.

The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst.  Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions.  Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly.  Universal testing was also scarce.  Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response.  Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities.  This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well.  It has never been clearer that mass incarceration is a public health issue.  As of today, states have largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

For a kind of video version of this story of significant and dangerous failure, also be sure to check out John Oliver's coverage.

Just a few of many, many prior posts from just the last month:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Federal prison population, per BOP accounting of "Total Federal Inmates," drops down to 161,640

Today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it again appears that the pace of the decline is slowing just a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners in federal facilities.  As we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to now a BOP reported total of 161,640.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases in some regions and some talk of renewed shut-downs, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, June 24, 2020

Making the case against LWOP, the bigger and badder death penalty

This new NBC News commentary by Peter Irons makes the case for paying more attention to, and getting rid of, LWOP sentences.  The piece's full headline highlights its themes: "A prison sentence of life without parole isn't called the death penalty.  But it should be.  Before we cheer the huge drop in capital punishment cases, we need to revisit and replace the extended death penalty — life without parole."  I recommend the full piece, and here are excerpts:

[A]s more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery.  There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades.  Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars....

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent.  Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.  Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets....

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.  But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse....

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.  By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration.  The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others.  To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.

June 24, 2020 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Latest (and free) Federal Sentencing Reporter issue on "Creating a Crisis: Growing Old in Prison"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, especially now that it allows me to flag this latest and timely FSR issue and some of the articles therein.  This new issue was put together by guest editor Jalila Jefferson-Bullock, and here are a few paragraphs taken from her introduction to the issue which provides a partial overview:

The Creation of a Crisis by Jalila Jefferson-Bullock:

This Issue of FSR is dedicated to the critical matter of aging in prison.  While COVID-19 media coverage currently highlights the plight of our most vulnerable prisoners, the graying of America’s prisons is nothing new.  One of the most foreseeable, yet ironically ignored, consequences of the harsh sentencing laws of the 1980s and 1990s is the dramatic upsurge in prison population through the predictable process of human aging.  Presently, elderly inmates comprise 19% of the total prison population, and that number continues to rise.  The cost of medical care for elderly offenders is five times greater for prisons with the greatest elderly population than for those with the least amount of elderly inmates, due, in large part, to factors that naturally accompany growing older.  Prisoners also experience accelerated aging and therefore require varied medications, special diets, social interventions, and individualized supervision much earlier than members of the general population of the same age.  By their own admission, prisons are ill-equipped to manage the mammoth health care, social, and other costs associated with imprisoning the elderly.  The costs of incarcerating aged offenders are quite unsustainable....

This Issue tackles the prison ‘‘silver tsunami’’ phenomenon rather creatively.  Our contributors include established law and sociology scholars, practicing attorneys, veteran politicians, and returned citizens.  Their voices herald personal narrations of the inhumanity of prion health care, the power of redemption after long years of confinement in a brutal prison system, the importance of committed, community partnerships in rebuilding retuned citizens’ lives, and deep, scholarly insight into the actual, harsh conditions that vulnerable, elderly inmates face.  This Issue represents various, unique perspectives on the crisis of aging in prison and, overall, provides a glimpse into what life is like for the incarcerated elderly.  Here, we read firsthand accounts of the inability of the prison system to safeguard its most vulnerable population.  We also learn, through authentic accounts, that despite the injustice doled out to our imprisoned elderly, there is hope and the prospect of embracing a new, bright future. 

Amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration.  Unfortunately, neither resulted in widespread releases.  In the wake of COVID-19, policies authorized by the CARES Act offer an occasion to explore early release of elderly offenders afresh.  This time, we must get it right.  

Along with the introduction and relevant primary materials, this FSR issues includes these articles:

A Divinity That Shapes Our Ends: From Life Without Parole to the House of Life Initiative by The Elsinore Bennu Think Tank for Restorative Justice
The Unusual Cruelty of Nursing Homes Behind Bars by Rachel E. López
The Personal Case For Releasing The Elderly A Real Second Chance by Thomas J. Farrell
The Special Perils of Being Old and Sick in Prison by William J. Jefferson
Emergency Parole Release for Older Parole-Eligible DOC Inmates by David I. Bruck
Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19 by Jalila Jefferson-Bullock

June 24, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

FINAL REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  Because the deadline for submissions is next week (June 30), this is going to be my reminder.  But it is certainly not too late to get involved; the basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

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

"Crisis and Coercive Pleas"

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

Even in the best of times, trials are rare.  In the midst of the current pandemic, trials have vanished altogether in certain parts of the country; in other areas they occur sporadically as courts grapple with how to hold trials safely.  This makes sense from a public health perspective, but the lack of trials, along with other challenges posed by the coronavirus crisis, poses a heightened risk that defendants will be coerced into false and unfair pleas.

Coercive pleas are part and parcel of the criminal system, but the current crisis provides several avenues for even greater abuse of defendants through the plea process.  In Part I of this essay I explore the particular concerns related to plea bargaining during the COVID-19 crisis and address three broad areas: 1) the particularized fear of a prison or jail sentence during a pandemic, 2) the difficulty with holding — or complete lack of — jury trials, and 3) issues with access to counsel and other procedural challenges that defendants will face during and after the crisis.

Part II offers some solutions to mitigate the risk of coercive pleas.  The essay encourages criminal courts to think about holding jury trials via video, despite the many obvious challenges.  The essay also defines several ways in which judges can take a more active role in protecting against coercive pleas during the pandemic.  And, as the essay explores, this crisis may also provide opportunities for creative problem solving that can outlast the virus.

June 24, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 23, 2020

Roger Stone's past sentencing and coming prison time making headlines

I am not sure which of these stories surprises me less:

From ABC News, "Citing coronavirus fears, Roger Stone files motion to delay reporting to Georgia prison"

A week before President Donald Trump's longtime friend and adviser Roger Stone was scheduled to turn himself in to federal prison in Georgia to begin his more than three-year sentence, his lawyers filed a motion seeking to delay his surrender, citing the deadly risk posed by the coronavirus outbreak.

“This motion is based on the exceptional circumstances arising from the serious and possibly deadly risk [Stone] would face in the close confines of a Bureau of Prisons facility, based on his age and medical conditions,” the motion says. “Those medical conditions make the consequences of his exposure to the COVID-19 virus in a prison facility life-threatening.”

The 67-year-old was sentenced to 40 months in prison on Feb. 20 by Judge Amy Berman Jackson in Washington, D.C. Stone's attorneys also asked to file a letter under seal from a physician concerning their client's medical conditions.

From Politico, "Prosecutor says he was pressured to cut Roger Stone 'a break' because of his ties to Trump"

A prosecutor who withdrew from the Roger Stone case after Justice Department leaders intervened to recommend a lighter sentence intends to testify before Congress that he and his colleagues were repeatedly pressured to cut Stone "a break," and were told that it was because of his relationship with President Donald Trump.

"What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President," Aaron Zelinsky, one of four prosecutors who quit the case, plans to tell the House Judiciary Committee Wednesday, according to his prepared testimony. "I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was 'afraid of the President.'"

June 23, 2020 in Celebrity sentencings, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Senators Durbin and Grassley introduce new bill to make modest, but still important, reforms to federal elderly home release and compassionate release

As reported in this new press release, "U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced new, bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons. "  The release provides some notable contextual data and well some details of the bill's particulars:

Sadly, more than 80 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs. 

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  In 2019, 1,735 requests for release were initiated by or on behalf of prisoners, of which 1,501 were denied by wardens and 226 of which were forwarded to the BOP Director.  Of these 226, BOP approved only 55 and denied 171.  Since March of this year, only about 500 inmates have been granted compassionate release in the midst of the pandemic, nearly all of them by court order over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“At the end of 2018, Congress came together to pass one of the most important criminal justice reform laws in a generation.  Now we have an obligation to ensure that this law is properly implemented,” Durbin said.  “My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus.  I’m hopeful that this commonsense, bipartisan legislation will pass swiftly through the House and Senate and will be signed into law.”

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote);
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

The following organizations support the COVID-19 Safer Detention Act:  Aleph Institute, Americans for Tax Reform and Digital Liberty, Drug Policy Alliance, Due Process Institute, FAMM, Federal Public and Community Defenders, FreedomWorks, Justice Action Network, National Association of Criminal Defense Lawyers (NACDL), Right on Crime, Sentencing Project, Taking Action For Good, Texas Public Policy Foundation (TPPF), and Tzedek Association.

A section-by-section of the legislation is available here.

Bill text is available here.

I have placed in bold the provisions of this new bill that strike me as particularly noteworthy and that could prove most consequential. In short form, this bill would seem to authorize (though not require) judges to move most persons over the age of 60 from federal prison into home confinement as soon as they approach serving about half of their initially imposed prison sentence.  Sound like a great idea to me, and it also sounds like another version of another kind of "parole light" proposal of the sort I discussed a few years ago in this article

June 23, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

An NYC window into COVID's disruption of the administration of criminal justice

The New York Times has this lengthy new front-page article under the headline "Pandemic Pushes New Yorkers Into Legal Limbo."  The piece merits a full read as just one version of so many stories about how COVID is echoing through criminal justice systems.  Here are some excerpts:

The coronavirus outbreak is putting extraordinary stress on New York City’s judicial system, forcing lengthy delays in criminal proceedings and raising growing concerns about the rights of defendants.

Since February, the backlog of pending cases in the city’s criminal courts has risen by nearly a third — to 39,200.  Hundreds of jury trials in the city have been put on hold indefinitely.  Arraignments, pleas and evidentiary hearings are being held by video, with little public scrutiny.  Prosecutions have dropped off, too, as the authorities have tried to reduce the jail population.

Three months into the crisis, the city’s once bustling courthouses are barely recognizable.  Their spacious lobbies and halls, formerly filled with people, are nearly empty, and in the courtrooms clerks in surgical masks tend to virtual hearings on giant video screens.  Two centuries of face-to-face judicial traditions have either been cast aside or moved online....

Two weeks ago, the state courts in New York City took a first small step toward physically reopening: Judges started returning to their chambers, though they are still holding court virtually.  No one has quite figured out yet how to bring the public back safely to New York City courthouses, nor how to resume trials and state grand jury hearings. Officials said the challenge of balancing public health and the requirements of the law is likely to persist for some time.  “It’s a situation we’ve just never seen before,” said Melinda Katz, the Queens district attorney....

The halt on jury trials, while highly unusual and difficult for defendants, has not yet reached a crisis point.  Even under the best conditions, it can take years for cases to move from arrest to trial, and only about 5 percent ever get that far; most end with a plea bargain.  Still, jury trials are the heart of the justice system, and state court officials face significant hurdles as they resume.  “I can’t tell you we have a precise plan,” said Judge Lawrence Marks, the state’s chief administrative judge. “It will be one of the last phases.”

Unlike other court proceedings, jury trials require people to hear evidence together and then deliberate in close quarters.  “The whole idea of ‘12 Angry Men’ screaming at each other over a telephone, over a Zoom network, would be ridiculous,” said one defense lawyer, Joel Cohen.

In Federal District Court in Manhattan, architects and carpenters have been redesigning courtrooms, building jury boxes with additional space and inserting plexiglass dividers to keep jurors safer. Shields are being put in front of witness stands and at lecterns where lawyers argue.  Certain precautions that are being considered may raise legal issues.  “You can’t put a mask on the witnesses in a criminal trial because the defendant has the right to see them,” Chief Judge Colleen McMahon said.  “Jury trials are way, way down the road,” she added.

Some jurists warn that a prolonged delay in resuming trials could violate the Constitution.  “If well past July and for months to come, it is still dangerous for 12 people to gather together in tight quarters to hear and determine civil and criminal cases, it is not easy to see how the constitutional right to a jury trial will be genuinely met,” Judge Jed S. Rakoff wrote in The New York Review of Books....

People who are arrested no longer set foot inside a physical courtroom to hear the charges against them in an arraignment. They now sit in a windowless booth in a courthouse cell, looking into a camera and speaking into a microphone on the wall.  Felony arraignments have fallen by 50 percent this spring compared to last, largely because far fewer people were arrested in the first weeks of the pandemic.  That has made the transition to video somewhat easier, though not any faster.  In the months after the courts moved to a virtual system, the average arrest-to-arraignment time has increased by as much as three hours.

Before the pandemic, lawyers generally did most of the talking in court. In the video hearings, defendants, no longer in the same room as their lawyers, have been more prone to sudden and sometimes incriminating outbursts....  Tina Luongo, chief criminal defender for the Legal Aid Society, mentioned another challenge: The inability to see a witness's body language and quietly confer with the defendant seriously hampers defense lawyers. “We’ve got to figure that out,” she said. “When we’re all on one Skype link, how do I talk to my client in a confidential way?”  Before hearings begin, lawyers can meet virtually with clients in private Skype conference rooms, but the system is not foolproof....

Perhaps the biggest headache for the state courts has been the inability to convene grand juries, which given their size — they are usually composed of 16 to 23 people — have been unable to gather safely. Grand juries have traditionally acted as a citizen’s check on overzealous prosecutions by scrutinizing evidence and approving formal charges. They are also used by state and federal prosecutors to conduct long-term investigations.  Without them, the rights of both defendants and crime victims are less assured....

Unable to convene grand juries, the city’s five district attorneys are turning instead to preliminary hearings, which have not been conducted in New York in decades.  At the hearings, judges hear witnesses, consider evidence and decide if prosecutors’ charges are warranted. Like everything else these days, these hearings are being held by video....

The city’s two federal courts, in Manhattan and Brooklyn, have adapted more smoothly to the crisis.  Under their auspices, grand jurors began meeting again recently outside the city, in White Plains and Central Islip.  And in both courts, regular audio and video hearings have been held, with dial-in numbers for the public clearly posted on electronic dockets.  But obstacles remain, like how to bring in large numbers of prospective jurors for screening.

Disappointingly, this piece does not address sentencing issues and challenges in state or federal courts.  As always, I welcome comment from readers about their recent COVID-shaped experiences in that arena.

June 23, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Intriguing (and discouraging?) criminal justice elements in new polling mostly about policing reform

06_23_2020_Chart3This new release, headlined "Widespread Desire for Policing and Criminal Justice Reform," reports on a new Associated Press-NORC Center for Public Affairs Research poll that is mostly about policing reforms but includes a few notable criminal justice questions.  Here are excerpts about the poll, with my emphasis on its criminal justice elements:

Large majorities of the public support the implementation of policies aimed at reducing police violence, but few back a reduction in the funding for law enforcement.  Most Americans say the country’s criminal justice is in need of serious transformation, and police officers who kill or injure civilians are treated too leniently by the courts.

In the national AP-NORC survey, which was conducted as protests spread across the country in response to the killing of George Floyd, a handcuffed Black man who died after a white police officer pressed his knee into Floyd’s neck for several minutes, nearly half regard police violence to be very serious problem.

The public agrees that several reforms could help prevent police violence against civilians.  Americans, regardless of race, strongly support policies that include body cameras, holding police accountable for excessive force and racially biased policing, and creating criteria for the use of force.  There is little support for reducing funding for law enforcement.

There is majority support in both parties for a number of reforms.  However, Democrats are more likely than independents and Republicans to support all the guidelines to prevent police violence included in the survey.  The biggest partisan gaps arise when it comes to limiting the use of military equipment, reducing funding for agencies, and limiting the criminal justice system’s focus on policing and prosecuting low level offenses.

More than two-thirds of the public say that criminal justice system needs either major changes or a complete overhaul.  Black Americans are more likely than white Americans to say the system needs a complete transformation.  Views differ based on partisanship with 44% of Democrats saying the system needs a complete change while just 27% of independents, and 12% of Republicans say the same.

Most Americans — including a majority of white and Black adults — believe that police officers who cause injury or death in the course of their job are treated too leniently by the justice system.  In 2015, just 41% of all adults and 32% of white Americans said the same.

Democrats are almost twice as likely as Republicans to say police are treated too leniently by the justice system (85% vs. 43%).

The nationwide poll was conducted June 11-15, 2020 using the AmeriSpeak® Panel, the probability-based panel of NORC at the University of Chicago. Online and telephone interviews using landlines and cell phones were conducted with 1,310 adults. The margin of sampling error is +/-3.7 percentage points.  In addition, Black adults were sampled at a higher rate than their proportion of the population for reasons of analysis. The overall margin of sampling error for the 377 completed interviews with Black respondents is +/- 5.3 percentage points.

I suppose I should take a "glass-half-full" view on this poll and be encouraged that so many Americans seem to be in favor of policing and criminal justice reforms.  But I cannot help but see a lot of "glass-half-empty" elements such as the fact that roughly two-thirds of Republicans and Independents oppose "reducing the criminal justice system’s focus on policing and prosecuting low level offenses."  In the wake of all the protests about lock-down orders and their enforcement, not to mention significant support for marijuana reforms, I would have expected and hoped support for this kind of reform to be stronger.  Similarly, with all of Prez Trump's attacks on the FBI and high-profile prosecutions of his various associates, I would have hoped for a larger number of Republicans to say our criminal justice system needs a complete overhaul.

Long story short, I think anyone and everyone advocating for any kinds of criminal justice reforms must not lose sight of the power of status quo biases, especially for those who are powerful and who do not bear the brunt of criminal justice biases.  This poll suggests we may have a unique opportunity for unique reforms in the coming weeks and months and years, but it also should be a reminder that reforms are always an uphill battle.

June 23, 2020 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, June 22, 2020

"The Substance of Montgomery Retroactivity: The Definition of States’ Supremacy Clause Obligation to Enforce Newly-Recognized Federal Rights in Their Post-conviction Proceedings and Why It Matters"

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

In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court made a decision of far-reaching importance to the criminal justice system: the Supremacy Clause requires states adjudicating post-conviction attacks to give full retroactive effect to “substantive” new rules of federal constitutional law.

The significance of this holding has so far been under-appreciated because of the assumption that “substantive” has the same narrow meaning in the context of the state’s obligations under the Supremacy Clause as it does under Teague v. Lane, 489 U.S. 288 (1989), which sets forth prudential limitations on the claims that the federal courts will entertain when adjudicating federal habeas corpus attacks on state criminal convictions.

But, this article argues, the two contexts are not the same and the assumption is unwarranted.  To be sure, rules that are “substantive” under Teague are also substantive under Montgomery.  But because Montgomery is based on the Supremacy Clause, the class of “substantive” federal rules for Montgomery purposes should be far broader than it is for Teague purposes.

“Substantive” rules under Montgomery, I propose, include all those whose policy underpinnings extend beyond enhancing the factual accuracy of particular decisions.  Examples of such rules are ones whose aims include discountenancing government misconduct (e.g., barring evidence derived from coerced confessions or unreasonable searches) and achieving full community participation in the judicial process (e.g., adding new groups to the ones that may not constitutionally be excluded from jury service, and expanding the categories of juror bias that a defendant must be permitted to litigate).

Adopting the proposed definition will have structural benefits to the system of criminal justice adjudication.  The Montgomery decision will necessarily have the effect of increasing the number of state post-conviction decisions.  The broader the definition of “substantive” the more pronounced the effect.  The more pronounced the effect the better off the criminal justice system will be, for two reasons.  First, state post-conviction decisions will be some extent be able to fill the gap in the normal creation of new rules by lower federal courts that has resulted from the restrictive ruling in Teague.  Second, the greater the salience of post-conviction decisions, the greater the pressure on the states to improve the quality of their post-conviction systems.

Thus, in the interests of making modest but real improvements in the quality of our criminal law, lawyers, legislators, academics, judges, and all individuals concerned about justice should seek adoption of the proposal of this article.

June 22, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Rounding up some recent sentencing scholarship new to SSRN

In this space, I typically only flag "brand new" scholarship when if first appears on SSRN and which has not been previously available in print or elsewhere online.  But I have seen a number of notable and still timely pieces with 2019 publication dates that have just recently been posted to SSRN.  Because I always benefit from additions to my summer reading list, I figured I would flag this quartet of "new to SSRN" pieces in this one post:

What Makes the Death Penalty Arbitrary? (And Does It Matter if It Is?) by Chad Flanders

18 U.S.C. section 3553(a)'s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner' by Erica Zunkel

The Bureaucratic Takeover of Criminal Sentencing by Maimon Schwarzschild

Categorically Redeeming Graham v Florida and Miller v Alabama: Why the Eighth Amendment Guarantees All Juvenile Defendants a Constitutional Right to a Parole Hearing by Parag Dharmavarapu

June 22, 2020 in Recommended reading | Permalink | Comments (0)

No new cert grants from SCOTUS as Justice Thomas laments failure to take up whether First Amendment limits criminalizing "reckless threats"

This morning's Supreme Court order list yet again lacks any new grants of certiorari (which, as explained in this recent post, I have come to expect from this court).  But, showcasing as he did last week that he will call out his colleagues for failing to take up issues he considers important, Justice Thomas has a dissent from the denial of cert in Kansas v. Boettger, No. 19–1051.  Here is how this six-page dissent gets started:

Kansas asks us to decide whether the First Amendment prohibits States from criminalizing threats to “[c]ommit violence . . . in reckless disregard of the risk of causing . . . fear.” Kan. Stat. Ann. §21–5415(a)(1) (2018).  Respondent Timothy Boettger was convicted for telling the son of a police detective that he “‘was going to end up finding [his] dad in a ditch.’” ___ Kan. ___, ___, 450 P. 3d 805, 807 (2019).  Respondent Ryan Johnson was separately convicted for telling his mother that he “‘wish[ed] [she] would die,’” that he would “‘help [her] get there,’” and that he was “‘going to f***ing kill [her] a***.’” ___ Kan. ___, ___, 450 P. 3d 790, 792 (2019).  The Kansas Supreme Court overturned both convictions and held that reckless threats are protected by the First Amendment, relying on Virginia v. Black, 538 U.S. 343 (2003).

In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate. See Elonis v. United States, 575 U.S. 723, 760– 767 (2015) (dissenting opinion).  It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited.  The Kansas Supreme Court reached the opposite conclusion by overreading our decision in Black, which did not answer the question presented here.  Other courts looking to Black, however, have upheld similar statutes.  State v. Taupier, 330 Conn. 149, 193 A.3d 1 (2018); Major v. State, 301 Ga. 147, 800 S.E.2d 348 (2017).  I would grant the petition for certiorari to resolve the split on this important question.

June 22, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 21, 2020

"Investing in Failure: 2020 Ballot Initiative to Repeal Justice Reform Would Come at a High Cost to Californians"

The title of this post is the title of this recent report from the Center on Juvenile and Criminal Justice making the case against a ballot initiative before California voters this year.  Here is the report's introduction:

In November 2020, Californians will vote on a ballot initiative titled Restricts Parole for Non-Violent Offenders.  Authorizes Felony Sentences for Certain Offenses Currently Treated Only as Misdemeanors.  Initiative Statute (“the initiative”), which would roll back key elements of the state’s recent justice reforms, including Public Safety Realignment, Proposition 47, and Proposition 57 (AB 109, 2011; Prop 47, 2014; Prop 57; 2016; SOS, 2018).  In recent years, the Center on Juvenile and Criminal Justice (CJCJ) has analyzed the effects of other major reform initiatives, including the “Three Strikes” law reform, Proposition 47, and Proposition 57 (CJCJ, 2008; 2011; 2014; 2014a; 2014b; Ridolfi et al., 2016; 2016a).  This report considers the current initiative’s effects on budgets, jail and prison populations, and crime rates.  Our analysis suggests that the initiative’s passage could siphon scarce state resources and increase populations in jails and prisons to critical levels.

June 21, 2020 in Campaign 2020 and sentencing issues, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Seventh Circuit panel finds way above-guideline (stat-max) sentence to be "not sufficiently" justified

As long-time readers know, I have long been troubled be the fact that the Booker-created reasonableness standard of review has been pretty toothless as a check on extreme federal sentences. But because so few sentences have been found unreasonable, any such decision is noteworthy, and so here I highlight a new Seventh Circuit panel decision handed down last week in US v. Jones, No. 19-1644 (7th Cir. June 19, 2020) (available here). The 12-page ruling is worth reading in full, and here is how the opinion starts and one notable substantive paragraph:

In 1998, a federal jury convicted Jerry Jones of two carjackings, an armed bank robbery, and using firearms during those crimes of violence.  The district court sentenced him to 840 months in prison. Twenty years later, the district court vacated its original sentence and ordered resentencing because Jones no longer qualified as a career offender under the federal Sentencing Guidelines.

At resentencing, Jones’s effective Guidelines range was 348–390 months.  The district court deviated from the Guidelines and once again sentenced Jones to 840 months in prison. That was an increase of 450 months, approximately 215% above the high end of Jones’s Guidelines range.  Jones now appeals his sentence.  Because the district court did not sufficiently justify the extent of its deviation from the Guidelines, we vacate its judgment and remand for resentencing....

Here, the district court acknowledged the need to avoid unwarranted sentence disparities, noting that Jones’s co-defendants—“with similar records [and] similar conduct” — had received sentences of 675 months and 728 months.  Notwithstanding the three defendants’ similar records and similar conduct, Jones received a sentence 165 months longer than one co-defendant and 112 months longer than the other.  The court did not explain why it singled Jones out for different treatment.  Quite the contrary, it synthesized the offenders and their offenses, observing they had “similar records [and] similar conduct.”  It was therefore incumbent on the court to specify what warranted Jones’s sentence disparity.  See 18 U.S.C. § 3553(a)(6).  Without such a justification, and because the court did not sentence Jones within the Guidelines range, we cannot assure ourselves that the court sufficiently considered the interest in consistency between similarly situated defendants.

No matter how long I follow the federal sentencing system, I will continue to be awed (in a bad way) by the scale of sentences that get handed out in seemingly run-of-the-mill cases. Here, after co-defendants receive sentences of over 55 years and 60 years, the judge decided that he should round up to an even 70 years for Mr. Jones (meaning that, even with time off for good behavior in prison, he could be not released until age 95).  I am pleased that this Seventh Circuit panel is now demanding a more meaningful justification for such a sentence, but I am displeased that such extreme sentences can be deemed justifiable in part because they are just not all that unusual in the federal system.

June 21, 2020 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Saturday, June 20, 2020

"The Categorical Imperative as a Decarceral Agenda"

The title of this post is the title of this new essay authored by Jessica Eaglin recently posted to SSRN. Here is its abstract:

Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable.  As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories of offenders best suited for diversion from prison sentences at the state level.  This decarceral method is at odds with popular sentencing reforms in the states.

By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern with sentencing reforms in the era of mass incarceration.  Reforms focused on categorizing offenders can obscure and sustain policymakers’ persistent tendency to frame social problems as matters of crime and punishment. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the methodologies that should inform sentencing reforms going forward.

June 20, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, June 19, 2020

Notable new talk of (badly needed) new nominees for the US Sentencing Commission

The US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration. With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I am fascinated to see this new NPR piece headlined "Concerns Mount Over Possible Trump Picks For Influential Crime Panel."  Here are the particulars:

The White House is preparing to fill several vacancies on the influential commission that makes policy used to punish tens of thousands of criminals every year, according to three sources familiar with the process.  But critics worry that the likely Trump nominees could adopt more punitive approaches at a time when a diverse group of protesters is marching for a different approach to policing and justice.

The sources said the White House is consulting aides on Capitol Hill and in the criminal justice community about four Republican candidates for the U.S. Sentencing Commission: three sitting federal judges and a fellow at the conservative think tank the Heritage Foundation.

An earlier Trump nominee, William Otis, is no longer under consideration, two sources said.  Otis' writings about race and crime had drawn criticism from civil rights groups and prisoner advocates when his name first emerged for the position two years ago.

Civil rights advocates who work on justice issues said the Trump candidates still under discussion are worrisome.  "The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds," said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights....

Here is a rundown of likely nominees in the coming months:

Senior U.S. District Judge Henry Hudson

Hudson is a former director of the U.S. Marshals Service nicknamed "Hang Em High Henry" for his work as a local prosecutor.  "I live to put people in jail," he once told The Washington Post during his stint in Arlington County, Va. Defense lawyers said Hudson has developed a well-deserved reputation in recent years for handing out long prison sentences from the federal bench.

Chief Judge K. Michael Moore of the Southern District of Florida

From his perch in Miami, Moore has presided over several high-profile drug cases.  Earlier in his career, Moore, too, led the U.S. Marshals under then-President George H.W. Bush.

Kentucky federal judge Claria Horn Boom

Boom was nominated to the judgeship by President Trump three years ago.  She won Senate confirmation for that post with only one negative vote.  Senate Majority Leader Mitch McConnell is one of her supporters.

John Malcolm, director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation in Washington

The Meese Center is named after Reagan-era Attorney General Edwin Meese.  Malcolm helped put together an early list for candidate Trump in the event of a Supreme Court vacancy.  He's also defended the current attorney general, William Barr, for his handling of the special counsel report on Russian election interference and possible obstruction of justice by the president.  Malcolm, a former federal prosecutor, has reached out to allies across the political aisle to try to overhaul how many people serve prison time.  "In my opinion, under our current system, too many relatively low-level drug offenders are locked up for five, 10, and 20 years when lesser sentences would, in all likelihood, more than satisfy the legitimate ... goals of general deterrence, specific deterrence, and retribution," he told Congress five years ago.

Federal Appeals Court Judge L. Felipe Restrepo

Restrepo, who worked as a public defender before being selected for the federal judiciary by then-President Barack Obama, is under discussions for an open Democratic slot on the commission.  Restrepo, of the U.S. Court of Appeals for the Third Circuit, had been advanced for the same Sentencing Commission slot in 2018, but the Senate didn't hold a hearing on him or the other nominees at the time.

I find this story curious and fascinating for a whole lot of reasons.  In addition to seeming to confirm, as I speculated here a few weeks ago, that Bill Otis is no longer on a USSC short-list, this story leads me to wonder whether anyone really thinks any new slate of USSC appointments could get confirmed in the run up to the November election (or in the lame-duck period thereafter).  The addition of a favorite of Senate Majority Leader Mitch McConnell may be explained by this factor.  (Also, my understanding has been that there were three R spots and two D spots open on the Commission right now, so I am not sure this could be the full final slate.)  Very interesting.

Prior related posts:

June 19, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

More notable reporting on the persistently notable carceral challenges posed by COVID-19

It has only been a few days since I rounded up, in this post, some headlines and stories about incarceration nation's continued struggles with the coronavirus pandemic.  But, in just that short time, I have seen enough notable new pieces that I thought it time to do another one.  The first two pieces are lengthy accounts of prison failings and worth every moment, the others provide a snapshot of ugly realities in particular jurisdictions:

From The Marshall Project, "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps."

From ProPublica, "The Prison Was Built to Hold 1,500 Inmates. It Had Over 2,000 Coronavirus Cases."

 

From The Guardian, "San Quentin: outcry after Covid-19 cases at California prison triple in two weeks"

From KVUE, "State prisons remain a hot spot for COVID-19 in Texas"

From The News & Observer, "North Carolina to test all 31,200 state prison inmates for coronavirus"

From the St. Louis Post-Dispatch, "The coronavirus continues to spread in the Missouri prison system"

From The Spokesman-Review, "Central Washington prison has high number of COVID-19 cases"

From WTOC (Georgia), "Coastal State Prison reports highest number of inmate deaths related to COVID-19"

June 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

PENULTIMATE REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  Because the deadline for submissions is approaching (June 30), I figure this may be my second to last reminder.  But it is certainly not too late to get involved; the basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

June 19, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Terrific coverage of clemency in new issue of University of St. Thomas Law Journal

The latest issue of the University of St. Thomas Law Journal has a great collection of articles under the heading "Clemency: A Constitutional Power Moves into the Future."  Here are the titles, authors and links for all the pieces:

Memo to the President: Two Steps to Fix the Clemency Crisis by Mark Osler

Who Is My Brother’s Keeper? by Rudy Martinez

Clemency Must Play a Pivotal Role in Reversing the Damage Caused by the "Tough on Crime Era" by Mark V. Holden

Clemency, Pardons, and Reform: When People Released Return to Prison by Jessica Jackson

The Future of Presidential Clemency Decision-Making by Paul J. Larkin, Jr.

June 19, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 18, 2020

"Is Solitary Confinement a Punishment?"

The title of this post is the title of this new essay authored by John F. Stinneford now available via SSRN.  Here is its abstract:

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law.  Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence.  Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades.  Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment.  Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

June 18, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it now seems that the pace of the decline is slowing a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of decline increased to around 1,200 fewer reported prisoners in federal facilities.  But as we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as for June 11) to now a BOP reported total of 162,578.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  Time will tell.

Critically, though, dare anyone start wanting to think federal prisons are full of good stories, this new Marshall Project piece provides a reminder of grim realities in its full headline: "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps. The Bureau of Prisons was unprepared and slow to respond. Then officials took steps that helped spread the virus." 

A few of many prior related posts:

June 18, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 17, 2020

"Restorative Justice From Prosecutors' Perspective"

The title of this post is the title of this new article now available via SSRN and authored by Lara Bazelon and Bruce Green. Here is its abstract:

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well.  In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes.  Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use.

A handful of newly elected “progressive prosecutors” have expressed interest in applying restorative justice processes in these and other kinds of felony cases involving adult defendants.  But conventional prosecutors generally remain uninterested in or hostile to restorative justice, even though most accept problem-solving courts and other alternatives to prosecution and incarceration.  This Article explores why mainstream U.S. prosecutors are disposed against restorative justice and suggest how their concerns might best be addressed by restorative justice proponents.

June 17, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Though only mid-week, another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

I hope readers are not yet getting bored of my listing of COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A).  I have recently made a habit of assembling these lists on the weekends (see recent examples here and here).  But last week I put together this post with more than two dozen grants on a Friday because there were so many new sentence reductions being reported on Westlaw.  And, as this trend continues, I now felt a need to do a mid-week review of recent grants recently appearing on Westlaw.  So:

United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)

United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)

United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)

 

United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)

United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)

United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)

 

United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)

United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)

 

United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)

United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)

United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  As of this writing (mid-afternoon of June 17), this BOP page on the FIRST STEP Act is reporting 650 total grants of "Compassionate Releases / Reduction in Sentences."  The same BOP page reported less than 150 such grants before the COVID era began, so I think we can now confident state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.

Prior recent related posts since lockdowns:

June 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)