Wednesday, August 25, 2021

"Crime trends and violence worse in California’s Republican-voting counties than Democratic-voting counties"

The provocative title of this post is the title of this press release from the Center on Juvenile and Criminal Justice promoting its new report titled "California’s Republican Counties Have Worse Crime Trends And Higher Violent Crime Rates Than Democratic Counties."  Here is much of the press release:

A report released today by the Center on Juvenile and Criminal Justice finds that, compared to the 35 California counties that voted Democratic in the 2020 presidential election, the state’s 23 Republican-voting counties have higher rates of violent crime, including homicides.

For decades, Republican candidates and elected officials have demanded a “get-tough” approach to crime that generated more arrests, more imprisonments, and longer prison sentences.  As a result, a person is 58 percent more likely to be arrested and 41 percent more likely to be incarcerated in a Republican-voting county than in a Democratic-voting one.  Likewise, 12 of the 13 highest-incarceration counties vote Republican, while 16 of the 18 lowest-incarceration counties vote Democratic.

But have the hardline approaches pursued by Republicans officials actually reduced crime?  Just the opposite.  Republican-voting counties are seeing lesser declines in crime and higher rates of crime, particularly violent offenses and homicides, compared to their Democratic-voting counterparts.

The report finds:

  • Violent and property crime rates have declined most rapidly in Democratic-voting counties.
  • Homicide rates in Republican-voting counties are now 28 percent higher than in Democratic-voting counties.
  • The homicide death rate among White people in Republican-voting counties is on par with people of color in Democratic-voting ones, challenging widely held beliefs about violence in urban communities of color.
  • Republican-voting counties experience higher rates of drug, alcohol, and gun deaths than Democratic-voting counties, particularly among White residents.
  • Republican-voting counties pay less in state and local taxes per capita but rely more heavily on California’s costly prison system.

The gaps between urban/suburban-Democratic and exurban/rural-Republican California are widening, contributing to extremist politics and intractable divisions. Thirty years ago, the state’s cities experienced the worst economic hardships and highest rates of violent crime. Today, these issues have shifted to its exurbs, small towns, and rural areas.

California, like the rest of the country, suffered a major increase in homicide in 2020. This disturbing development has prompted calls by Republicans, and some Democrats, to roll back criminal justice reforms and reinstate tougher arrest and imprisonment policies. Yet these “get-tough” campaigns ignore an important reality – that Democratic-voting counties, which are more likely to embrace progressive reform, now see fewer violent crimes and homicides per capita than Republican ones.

I lack the empirical chops (and the time with the start of a new semester) needed to dig into the particulars of this report to assess its analysis. I do know that the Center on Juvenile and Criminal Justice is a progressive organization "whose mission is to reduce society’s reliance on incarceration as a solution to social problems."  And I would be eager to hear from certain persons at Crime & Consequences, which is located in California and has folks blogging here with a distinct set of criminal justice views, about their take on this notable new report.

A few of many prior recent related posts:

August 25, 2021 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Unusual Fourth Circuit panel affirms federal convictions and death sentence for Charleston church shooter Dylann Roof

I noted in this post from May 2021 that an unusual Fourth Circuit panel had to be assembled to hear the capital appeal of Charleston church shooter Dylann Roof because all the member of the Fourth Circuit were recused.  The mass recusal resulted from the fact that now Circuit Judge Jay Richardson was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.  And it meant that  Judge Duane Benton of the Eighth Circuit, Judge Kent Jordan of the Third Circuit and Senior Judge Ronald Gilman of the Sixth Circuit considered Roof's many issues on appeal.

That trio of judges today handed down a 149-page opinion in United States v. Roof, No. 17-3 (Aug. 25, 2021) (available here).  The per curiam opinion starts and concludes this way:

In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston, South Carolina during a meeting of a Wednesday night Bible-study group.  A jury convicted him on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to commit murder during and in relation to a crime of violence.  The jury unanimously recommended a death sentence on the religious-obstruction and firearm counts, and he was sentenced accordingly. He now appeals the convictions and sentence.  Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm....

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America.  He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.)  When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.  We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.  For the reasons given, we will affirm

In capital cases, it is pretty common for the losing party to seek en banc review. But, as was discussed in my May post, it is unclear whether and how an additional 12 judges would get appointed by designation in order to properly consider any en banc petition that might come next. Roof can, of course, proceed now to seek certiorari from the U.S. Supreme Court (which will surely happen eventually even if he does seek en banc review).

A few of many prior related posts:

August 25, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19"

The title of this post is the title of this new paper authored by Michael Zuckerman with an abstract now available via SSRN.  Here is that abstract:

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States.  It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane.  This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities.  The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine. 

Specifically, the Article addresses: (a) the relationship between habeas and classic “conditions of confinement” cases; (b) the nature of Eighth Amendment “deliberate indifference” in this context; (c) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (d) issues involving federalism and comity, and how courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances as preliminary or final relief; and (f) the fraught interplay between rights and remedies.  The Article concludes by suggesting potential solutions for courts and legislatures.

August 25, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, August 24, 2021

NY Gov Andrew Cuomo leaves office with a (high-profile) clemency whimper

in a detailed report released early last year, the NYU Center for the Administration of Criminal Law documented the decline of clemency in New York state in modern time.  This report, titled "Taking Stock of Clemency in the Empire State: A Century in Review," starts this way:

Clemency in New York has long been declining, while the state’s prison population has grown dramatically.  Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019.  In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819.  Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.

The ugly modern New York clemency numbers were particularly disheartening given that former NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see prior posts here and here).  But, after talking the talk, former Gov Cuomo thereafter never actually delivered significant results (see prior posts here and here). 

But, as is depressingly common, former Gov Cuomo did deciding to go on a bit of a final (though still modest) clemency spree after announcing his resignation.  This AP piece  detailed that Cuomo granted five pardons and five clemencies last week, and this new local piece details that in his final hours in office, "Gov. Andrew Cuomo commuted the sentences of four individuals, referred one case to the parole board, and fully pardoned one individual."  Given that there are well nearly 40,000 persons in New York prisons (with likely more than 10,000 over 50) and probably more than four million will some sort of state criminal record, a total of 16 clemencies on the way out the door seems more like a whimper than a bang.

That said, the one referral to the parole board will be sure to get attention because it involved a high-profile inmate with a high-profile son and it does not serve as a conclusion of the matter.  This local article, headlined "Cuomo commutes sentence of radical who took part in '81 robbery; David Gilbert, imprisoned for four decades, can take case to parole board," provides the basics:

Just hours before leaving office, Gov. Andrew M. Cuomo granted clemency to five men, including the commutation of the 75-years-to-life sentence of David Gilbert, a former member of the radical Weather Underground who in 1981 took part in the robbery of a Brink's armored truck in Rockland County that left two Nyack police officers and a security guard dead.

Steve Zeidman, a CUNY Law School professor who began representing Gilbert in 2019, said Monday evening that his client is one of the oldest and longest-serving among the state's roughly 38,000 inmates.  He said that Gilbert has expressed deep remorse for his role in the crime, and while behind bars has taken part in efforts such as the creation of an AIDS education program that became a statewide model as the epidemic was raging in the 1980s and '90s.

Zeidman, who directs the law school's Criminal Defense Clinic, said that beyond the impact on Gilbert personally, Cuomo's action sends a message to incarcerated people who fear they have no chance for release.  "When a governor issues clemency, it echoes, it reverberates, it spreads hope," he said.  Gilbert's son, Chesa Boudin, was elected district attorney for San Francisco in 2019.  His mother, Kathy Boudin, was also incarcerated for decades for her part in the heist, and received parole in 2003.

 

Gilbert and Kathy Boudin were in a transfer truck waiting for the getaway car carrying the robbers and the $1.6 million they had stolen from the Brink's truck at the Nanuet Mall. Boudin received a sentence of 25 years to life after hiring a lawyer, pleading guilty and accepting a plea deal; Gilbert defended himself and went to trial.

"My father was not present in the courtroom for much of the trial and nobody advocated for him, which is why it is a bad idea to represent yourself," Chesa Boudin told Grondahl. "My mother and father did the exact same thing and had identical culpability in the crime. My mother served 22 years in prison and was paroled 17 years ago, while my father is still in prison. It's an example of criminal justice imbalance."

August 24, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Is New York’s Wave of Gun Violence Receding? Experts See Reason for Hope"

Just over a month ago, I was starting to look at summer crime data from various cities as I pondered in a post, "As we puzzle through gun violence spike, is it too soon to hope a decline is already starting?."  I highlighted in this subsequent post that mid-year homicide data was more encouraging in 2021 than in 2020 in some notable cities (though more discouraging in others).  I now see that the Gray Lady is on the beat with this new article that has the headline that I have used for the title of this post.  Here are excerpts:

[A]mid the drumbeat of reports of shootings, experts who study the issue say that recent gun violence data has shown a downward trend. This June and July saw considerably fewer shootings than those months in 2020, experts note, and the numbers have not reached the stark levels many feared they might.

Experts caution against drawing conclusions from limited data and note that the recent trends could still change. Shootings also remain significantly up from prepandemic levels. But after the toll of the past year, the preliminary numbers have offered reason for optimism.

“In April and May, all indications were that where we were headed was even worse than most of last year,” said Marcos Gonzalez Soler, who heads the mayor’s office of criminal justice. “I think that is a very different universe from where we are now.”

As New Yorkers emerged last summer following months of isolation during the pandemic’s peak, the city began to experience the worst gun violence it had seen in decades. Over June and July 2020, New York saw 448 shooting incidents, a Police Department statistic that tracks distinct instances in which one or more people are shot, rather than total victims. It was a spike in shootings that was driven at least in part, many experts believe, by the social and economic disorder that accompanied the pandemic.

This summer, as the city reopened, the number of shooting incidents in June and July dropped to 323. Mayor Bill de Blasio and the police commissioner, Dermot F. Shea, have both touted the lower summer monthly totals as a positive sign, and have pointed to the increase in gun arrests between this year and last. (The arrests dropped dramatically between 2019 and 2020.) Mr. Gonzalez Soler offered a broader reasoning, pointing to the city’s range of efforts to tackle the issue over the summer.

Experts caution that it can take years to learn why crime statistics change, and warn against comparing crime figures in one year with the previous year — and that is particularly true during the pandemic’s upheaval and frequent waves of change. But many have taken note of the swing. Jeffrey Butts, the director of the research and evaluation center at the John Jay College of Criminal Justice, has been conducting analyses of quarterly shooting totals, comparing three-month periods between 2020 and 2021. The spike has appeared to be tapering off, even if gradually, across the past several times he has run the numbers, he said.

Mr. Gonzalez Soler said that he was “always skeptical” looking at the short-term trends in general, but “optimistic about the direction” the city has appeared to be moving in. Even as concerns remain, he noted several positive signs: New York saw homicides, for example, hover around a total similar to prepandemic levels over the past two months with 67 in 2021 — more in line with 2019 (64) than 2020 (100).

While experts say the current statistical trends are encouraging, shootings are still significantly up from 2019, when about 177 shootings were recorded in June and July. And regardless of the next few months, 2021 will end having taken a steep toll compared with the time before the pandemic, when fewer than 1,000 people were shot by year’s end. By Aug. 15, police statistics show more than 1,160 people had been shot in New York City this year....

Experts say it was always unlikely that the spike would vanish quickly: Individual shootings can fuel cycles of retaliation that lead to further gun violence and take time to break....

The shootings spike came after a period during which homicides in the city dropped to their lowest levels in more than six decades. The overall crime index — which tracks seven major crimes including murder, felony assault, rape and car theft — has also remained at its lowest level in decades because of declines in reports of burglary and robbery.

Even as gun violence has risen, it remains far below the city’s “bad old days” and peak levels of the 1980s and ’90s. Then, the city often reported annual homicide totals in the high 1,000s or low 2,000s. Last year’s end-of-year total was around 450; 2021 is on pace to finish near or below that number....

A clear view of where New York’s new baseline gun violence level may fall will not come anytime soon, experts say — particularly as the Delta variant fuels a rise in coronavirus cases and reopening efforts pause. “I think Delta’s going to interrupt any sort of simple narrative,” said John Pfaff, a law professor at Fordham University. “The pandemic’s already rebounding again,” he continued. “I think we have to wait until we really know we’re beyond the rebound before looking at what post-pandemic will look like.”

It’s also too early to pin down the root causes for the rise itself. Many experts who study gun violence and those who work in neighborhood groups on the issue believe the pandemic and its social and economic toll played a critical role.

But a variety of other factors may be part of the puzzle, including the rise in the volume of guns in New York and elsewhere during the pandemic and the breakdown of relations between communities and the police over the past year. And among the U.S. cities, large and small, that have seen spikes in gun violence during the pandemic, the causes are unlikely to be identical. For New York’s part, homicide rates remain below those of many smaller major cities including Los Angeles, Chicago and Houston. (That was also the case before the pandemic).

A few of many prior recent related posts:

August 24, 2021 in National and State Crime Data | Permalink | Comments (0)

Monday, August 23, 2021

En banc Sixth Circuit preserves death sentences in Kentucky in two big en banc rulings

This past Friday and also today, the Sixth Circuit handed down divided en banc rulings to upholds death sentences in cases from Ohio and Kentucky.  The Ohio case, Hill v. Shoop, No. 99-4317 (6th Cir. Aug, 20, 2021) (available here), has a majority opinion that gets started this way:

In this death penalty habeas case, appellant Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelveyear-old boy. The case has been to the Supreme Court once and before panels of this court twice.  The core issue in the underlying state case was whether Hill was ineligible for the death penalty because he is intellectually disabled, a question that became pertinent after the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304 (2002). Before us, the issues are whether, under governing AEDPA review principles, the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).  We conclude that the state court’s resolution of the issue does not meet either of the criteria that would permit a federal court to disturb a state conviction. Thus, we affirm the district court’s denial of Hill’s petition for a writ of habeas corpus.

The Kentucky case, Taylor v. Jordan, No. 14-6508 (6th Cir. Aug, 23, 2021) (available here), has a majority opinion that gets started this way:

Victor Taylor murdered two high-school students in 1984, for which a jury convicted him of capital murder and recommended a sentence of death.  The trial judge imposed that sentence and the Kentucky Supreme Court repeatedly denied Taylor’s claims for relief.  Taylor eventually filed a federal habeas petition, arguing (among many other things) that the prosecutor at his trial had discriminated against African-American members of his venire.  The district court denied Taylor’s petition. We affirm.

August 23, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Nova Scotia Court says "historic factors and systemic racism" should be considered in sentencing an African Nova Scotian offender

A helpful reader made sure I saw this interesting story about a notable new ruling in Canada headlined "Nova Scotia Court of Appeal rules to consider history of racism, marginalization in cases."  Here are the details:

The sentencing of Black offenders in Canada is on the verge of a dramatic change after Nova Scotia’s top court ruled that, as with Indigenous offenders, trial judges need to consider the history of racism and marginalization that shaped them, and do their utmost not to put them behind bars where appropriate.

The Criminal Code has spelled out since 1996 that incarceration is a last resort for Indigenous offenders.  It does not refer to any other racialized group.  But it does say that sentences are meant to fit both the offence and the offender.  The Nova Scotia Court of Appeal, in a ruling last week, became the country’s first appeal court to draw on that principle and require a judge-made, as opposed to legislated, approach to the sentencing of Black offenders.

“The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism,” Justice Anne Derrick wrote in a 5-0 ruling. The ruling illustrates the sharp turn that will now be demanded of Nova Scotia’s judges -- a change in approach that could well spread to other provinces.  Ontario’s top court is expected to decide a case soon on whether to require a similar approach.

Like the reports written on some Indigenous offenders, known as Gladue reports, in-depth documents that tell a judge at sentencing about a Black offender’s history of exclusion and marginalization should be done from here on, or the appeal court may overturn the sentence, Justice Derrick warned.  The reports on Black offenders are known as an Impact of Race and Culture Assessment (IRCA).

The ruling was applauded by Roger Burrill, a lawyer for Rakeem Anderson, the offender in the Nova Scotia case, who was sentenced to two years of house arrest, to be followed by two years of probation for illegal gun possession.  “I think it’s impactful for the whole country, on the basis that systemic racism is completely, totally, unequivocally recognized as a factor in dealing with the principles of sentencing,” Mr. Burrill said in an interview.

It was also applauded by the Criminal Lawyers’ Association, based in Ontario, which intervened in the case. “Not to suggest colonialism is the same as what happened to Blacks in Canadian history,” Daniel Brown, a vice-president of the group, said in an interview, “but there has been a history of slavery, a history of segregation. All of that has contributed to many of these challenges they face today.”... 

The IRCA report on Mr. Anderson, co-authored by social worker Robert Wright and by Natalie Hodgson, said the offender’s best friend was killed by violence.  Ms. Hodgson testified gun possession was an accepted cultural norm in the North End of Halifax, where Mr. Anderson, in his 20s, had lived in substandard housing, surrounded by poverty and crime. “Many Black males arm themselves with guns, not because they have plans to harm someone, but rather they feel the need to protect themselves in case,” Ms. Hodgson testified.

Mr. Wright, the author of the first IRCA in Nova Scotia in 2014, testified that certain behaviours arise from “a community’s trauma and difficulty,” and that harsh treatment will neither reform the individual nor deter others from their community. His report said: “Rakeem was thrown into the world as a young adult lacking the skills and knowledge to thrive and survive; no resources, supports or interventions, without therapy for trauma and loss, and a very low elementary-level education.”

Chief Justice Williams said she had spent many hours “agonizing” over a just sentence. Mr. Anderson, a father of four young children and said to have a good heart, in some ways did not appear a good candidate for rehabilitation.  He had done little to address his education and training deficits while his case was before the court.  Ultimately though, the judge agreed with Mr. Wright and sentenced Mr. Anderson to two years of house arrest, with a 10 p.m. curfew and conditions that he attend Afrocentric therapy to address trauma, attend literacy and education programs with an Afrocentric focus and perform community service.  “Punishment does not change behaviour when the actions are rooted in marginalization, discrimination and poverty,” Chief Justice Williams said, while adding that those who endanger society must be separated from it....

The 1996 Criminal Code provision singling out Indigenous offenders for more lenient treatment has not stemmed an increase in the prison population.  Indigenous peoples now make up 31.5 per cent of federal prisoners, while they are just over 5 per cent of the country’s population.

The full ruling is available at this link.

August 23, 2021 in Race, Class, and Gender, Sentencing around the world, Who Sentences | Permalink | Comments (1)

Deep thoughts about "criminal legal education" as we head back to school

I am very excited to be back to school this week with the extra pleasure and honor of teaching a (small section) of 1L Criminal Law (though I am frustrated that this semester will now be the fourth beset with COVID challenges).  My very first class ― way back in Fall 1997! ― was a small section of Criminal Law to 1Ls, and I surely want to believe I have done more good than harm in well over a dozen iterations of this great class.  However, this notable new Inquest essay by Shaun Ossei-Owusu should perhaps lead every criminal law professor to give some thought to whether and how we are just "Making Penal Bureaucrats."  This essay builds on some points he made in a recent law review article, "Criminal Legal Education," and here are excerpts:

Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death [of George Floyd] confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach.  And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system.  Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly.  Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval.  Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges.  The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education.

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school.  I don’t profess to have all the answers.  Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform.  There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”...

 With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so.  Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor.  A mere transmitter of what the law is?  A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work?  An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”?

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.  Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky.  Law schools can be cordoned off from their local communities.  The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things.  The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding.  Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help.  My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions.  Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course.  But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education.  The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold.  First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary.  I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions.  Let us just be intellectually honest about where we stand.  Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law.  Nevertheless, our field has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching.  Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures.  Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.

August 23, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Sunday, August 22, 2021

What exactly is going on at the federal prison in Atlanta?

DownloadThe question in the title of this post is prompted by this notable article in the Atlanta Journal-Constitution headlined "EXCLUSIVE: Atlanta federal pen nearly vacant amid corruption investigation."  A helpful reader made sure I did not miss this interesting story, and I am not quite sure what to make of it.  Here are excerpts:

An investigation into alleged corruption at the U.S. Penitentiary in Atlanta has led federal officials to ban several prison staffers and nearly empty out the prison, transferring about 1,100 offenders to correctional facilities in other states, The Atlanta Journal-Constitution has learned.

As of Friday, 134 inmates remained inside the Atlanta prison, according to its official website. Back in March, it had more than 1,800 inmates. Employees have been told that ultimately all prisoners from the penitentiary and inmates at the adjacent minimum security camp will be transferred.

The prison went into an institutional lockdown on June 22 after receiving a “serious threat” and an institution emergency was declared, a staff memo obtained by the AJC states. Two days later, an official with the Federal Bureau of Prisons told the staff in a follow-up memo the lockdown was being extended after investigators discovered a “prevalence of narcotics and cellular devices being used by the inmate population.”

That same day a prison teacher found 24 cell phones, 30 chargers, ear buds, Under Armour long underwear, wrapped bundles of a “leafy substance,” weed grinders, assorted chains and necklaces and one bottle of air freshener. And that was just in the Education Department.

A little more than two weeks later, BOP sent out memos notifying staff that four senior officers, along with one wage supervisor, had been barred from the federal pen and should not be allowed entry “under any circumstance.” They were barred “in the interest of the efficiency of the service,” the memos stated.

To employees at the prison, though, the opaque wording concealed nothing. One complained that the Bureau of Prisons had “gone nuclear” in rooting out problem employees, while others said an overhaul was long overdue. “We’ve been shouting from the rooftops for years and they didn’t do a damn thing,” said one longtime employee, who fears losing his job if his identity were revealed. “It’s been a long time coming.”

Inmates were transferred out the last week of July. The Bureau of Prisons did not respond to a request for comment. The southeast Atlanta complex is a medium-security prison for men. The complex also has a detention center for pre-trial detainees and inmates being held for transfer, as well as an adjacent camp for minimum security inmates.

Evidence has piled up in recent years about lax security at the complex, with lapses blamed at times on inadequate staffing. Tales of raucous parties and free-flowing contraband, though, pointed to staff complicity....

For years, some inmates at the minimum-security prison camp would come and go through a hole in the fence. A shuttle service was allegedly set up by inmates to transport other camp prisoners to local restaurants. But there were no arrests until 2017, when the FBI and police stationed officers on the other side of fence line to greet inmates on their way out.

Prisoners used cellphones for everything from self-incriminating Facebook Live sessions to allegedly operating a drug-trafficking organization from a prison cell. Just last week, the U.S. Office of the Inspector General released a scathing report on security lapses at an unnamed federal prison. The longtime employee who spoke with the AJC said the conditions outlined in the report mirror those at the Atlanta pen.

“A review of the facility’s video monitoring system revealed that staff were able to enter the facility during the night shift and walk around the metal detector without being screened,” the inspector general’s report states. “After discussing the matter with BOP personnel at the facility, we are concerned that this presents systemic concerns.”

The longtime employee said some guards would come in with backpacks and duffel bags that were never searched. The source told the AJC a carton of cigarettes could be worth $1,000. Parcels of methamphetamine would turn up in hiding places all over the prison. Those hiding places exist all over the prison and have taken a toll on its infrastructure, the longtime employee said.

It’ll be up to the prisoners who stayed behind to tackle the physical rehabilitation of a facility that in January turns 120 years old. “The plan is to receive approximately 250 Low Security inmates to serve as a work cadre for the entire USP to include outside areas,” BOP stated in an answer sheet provided to employees. While offenders are ultimately expected back ― that same answer sheet said “at this time” officials were unaware of any plans to shutter the prison for good or to assign staff to other Bureau of Prison facilities ― many employees may not be returning.

“They went nuclear instead of being surgical,” one lieutenant wrote on Facebook. He kept his job, he said, because he’s so close to retirement. Most of his colleagues in the lieutenant class were transferred elsewhere. “They have ruined lives and put an incredible stress on families,” said the lieutenant. The AJC is not naming him because he could not be reached for comment.

The longtime prison employee told the AJC “there’s lots of good people who are being forced to leave.” But too many were not on the up and up, he said. “I’d say 20 to 30% of the officers were dirty,” he said. “And that’s just totally unacceptable. You’re always going to have a few. Most prisons have one, two or maybe three bad apples. Not a quarter of the staff.”

August 22, 2021 in Prisons and prisoners | Permalink | Comments (5)

Saturday, August 21, 2021

Notable recent Prison Policy Initiative briefings on prison practices and their impacts

As I have said before, Prison Policy Initiative has many "briefings" related to prison policies and practices that are consistent must reads. Here I will flag some recent postings with post titles and summary intros:

"Unsupportive environments and limited policies: Pregnancy, postpartum, and birth during incarceration" by Leah Wang:

Making up for a serious gap in government data collection and understanding, researchers are discovering what pregnant incarcerated women should expect when they’re expecting (or when they give birth while in custody). Findings indicate that jails, prisons, and youth facilities have yet to adequately recognize pregnancy and postpartum needs either in policy or in practice.

"The Biden Administration must walk back the MailGuard program banning letters from home in federal prisons" by Wanda Bertram:

The Bureau of Prisons is considering a heartless, ineffective policy with far-reaching effects.

"New data: People with incarcerated loved ones have shorter life expectancies and poorer health" by Emily Widra:

Locking up the most medically vulnerable people in our society has created a public health crisis not just inside prison walls, but in the outside community and across the country: The health of individuals, families, and entire communities is clearly associated with incarceration.

August 21, 2021 in Prisons and prisoners | Permalink | Comments (1)

Friday, August 20, 2021

"Virtual Guilty Pleas"

The title of this post is the title of this new paper authored by Jenia Iontcheva Turner and available via SSRN.  Here is its abstract:

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health.  As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings.  To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns.  Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, impedes effective confrontation of witnesses, and prejudices the court’s perceptions of the defendant and witnesses.

Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings.  This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas.

Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coercive, or uninformed guilty pleas.  But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings.

The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over.  To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings.  Judges must review virtual pleas and plea agreements more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting.  These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid.

August 20, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Thursday, August 19, 2021

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

Some of many prior related posts:

August 19, 2021 in Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse"

The title of this post is the title of this new article on SSRN authored by Paul Robinson and Lindsay Holcomb. Here is its abstract:

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ.  There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome.  On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense.  In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account.  Should our assessment of an offender’s criminal liability be adjusted for their cultural background?  Their religious beliefs?  Their past life experiences?  The pedophilic tendencies they have always had but usually suppressed?

The question of how much to individualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to a justification, duress, and involuntary intoxication.  Indeed, it turns out that the problem of individualizing factors is present, if often obscured, in all criminal law doctrines of culpability, mitigation, and excuse.

The Article reviews the appeal of criminal law adhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized standard in some cases involving some doctrines.  But this leaves the jurisdiction’s criminal law in an awkward and unstable state.  Without a guiding principle for determining which individualizing factors are to be taken into account under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases.  The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises.

August 19, 2021 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Federal district judge dismisses illegal reentry prosecution holding "Section 1326 violates the Equal Protection Clause of the Fifth Amendment"

Though not exactly a sentencing ruling, late yesterday US Chief District Judge Miranda Du of Nevada issued a big decision in US v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev. Aug 18, 2021) (available here), concerning a statute that is the basis for tens of thousands of federal sentences every year.  Here is the start of the 43-page opinion in Carrillo-Lopez and its substantive conclusions:

On June 25, 2020, Defendant Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b) (“Section 1326”).  Before the Court is Carrillo-Lopez’s motion to dismiss the indictment (the “Motion”) on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).  On January 22, 2021, the Court heard oral argument on the Motion, and on February 2, 2021, the Court held an evidentiary hearing.  Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus — and as further discussed below — the Court will grant the Motion....

Carrillo-Lopez has established, and the government concedes, that the Act of 1929 was motivated by racial animus. The government does not assert the 1952 Congress addressed that history when it reenacted Section 1326.  Moreover, the government fails to demonstrate how any subsequent amending Congress addressed either the racism that initially motivated the Act of 1929 or the discriminatory intent that was contemporaneous with the 1952 reenactment.  The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326. Instead, the amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach.  Accordingly, the Court cannot find that subsequent amendments somehow cleansed the statute of its history while retaining the language and functional operation of the original statute.

In conclusion, the government has failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.  Moreover, the government’s alternative arguments — that a nondiscriminatory motive was “plain” or that subsequent amendments somehow imply the racial taint was cleansed — are not supported by caselaw nor borne out by the evidentiary record. In sum, on the record before the Court, the Court can only conclude that the government has not met its burden.  Because Section 1326 violates the Equal Protection Clause of the Fifth Amendment, the Court will grant Carrillo-Lopez’s Motion.

Scott Greenfield has an effective summary of the ruling in this new post at Simple Justice.  He notes that it "seems almost inconceivable that the Ninth Circuit won’t reverse this decision," but also highlights that "Judge Du’s decision makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine."  And here is some effective local media coverage:

This recent Quick Facts report from the US Sentencing Commission indicated that there were over 22,000 illegal reentry sentences imposed in Fiscal Year 2019, and nearly 20,000 such sentences in FY 2020. That means that, on average, in federal courts about 400 of these sentences are being imposed each and every week. Because Judge Du's opinion is not binding on other courts, this new decision will not likely disrupt this case flow dramatically. But I suspect it will be (and maybe already is) getting raised in new filings in district courts around the country.

August 19, 2021 in Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Wednesday, August 18, 2021

Authors of provocative paper retract judge-specific claims about "most discriminatory" federal sentencing judges

I expressed concerns in this post last month about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges under the title "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  In addition to articulating some first-cut concerns in my initial post, I also solicited and published here an extended post by Prof. Jonah Gelbach about the work based on this Twitter thread criticizing the paper.  

This new Twitter thread by one of the authors reports that the paper has now been revised to remove judge-specific claims as to the "most discriminatory" sentencing judges, and it is now re-titled "Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges."  This new New Jersey Law Journal article, headlined "Backpedaling: Authors of Study on Racist Rulings Retract Their Claims Against Pennsylvania, New Jersey Judges," provides some more details:

The authors of a study that accused some federal judges of extreme racial and ethnic bias in sentencing have withdrawn their conclusions about specific jurists following criticism of their methodology.

An earlier version of the study, published in July by the Institute for the Quantitative Study of Inclusion, Diversity and Equity, said two Eastern District of Pennsylvania judges and one from New Jersey give Black and Hispanic defendants sentences that are twice as long as those they give to whites.

But a revised version of the study, posted Tuesday, asks readers to disregard the references to specific judges....  “A previous version of this work included estimates on individually identified judges. Thanks to helpful feedback, we no longer place enough credence in judge-specific estimates to make sufficiently confident statements on any individual judge.  We encourage others not to rely upon results from earlier versions of this work,” the revised version of the study said.

The study’s lead author, Christian Michael Smith, explained on Twitter that, “while our initial paper appreciated how random chance, systematic missing data patterns, and/or hidden structural factors for sentencing could affect judge rankings, we now regard the following possibility as less remote than we initially regarded it: that a judge who is actually unproblematic could end up on the extreme end of our discrimination estimates, due to random chance, systematic missing data patterns, and/or hidden structural factors for sentencing.”...

Gelbach, in an email, said of the retraction, ”I applaud the authors for removing the ranking of judges’ sentencing practices and for making clear that people should not rely on those rankings. Given the data limitations, that was the right decision for them to make.”

Prior related posts:

August 18, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Environmental Indifference"

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

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution.  Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development.  The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials.  This work, using radon exposure litigation as a case study, explains how environmental harms in prisons threaten lives and violate the Constitution.

August 18, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

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

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

August 18, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable accounting of "widespread support" for the death penalty in public polling

Joseph Bessette and J. Andrew Sinclair have this lengthy new post at Real Clear Policy discussing public polling in the US about capital punishment. The lengthy piece, which I recommend in full, is titled "New Evidence Confirms Widespread Support for the Death Penalty." Here are a few excerpts (with few links from the original):

On July 1, the Biden administration halted the use of the federal death penalty, reversing the Trump administration’s 2020 resumption of executions.  The announcement of a moratorium pending a review of “policies and procedures” is less permanent than legislative abolition, but it is unlikely the president could get Congress to end the death penalty. Many Americans support capital punishment; in fact, our research shows that public support for the death penalty is even greater than commonly reported....

The Pew Research Center recently reported that 60% of Americans support the death penalty for murder.  Gallup, which has been asking Americans about capital punishment since the late 1930s, gauges current support at 55%.  These are clear majorities but well below the modern peak of around 80% in the mid-1990s.  Political choices have begun to reflect this systematic decline in support. Despite championing the death penalty in the 1990s, President Biden joined nearly every other Democratic presidential candidate in calling for its abolition in his 2020 campaign.  Virginia (in 2021) and Colorado (in 2020), both states trending towards the Democratic Party, recently abolished the death penalty.

Although the two of us disagree about whether capital punishment should be public policy in the United States, we agree that a nuanced approach is required for understanding public opinion on this issue.  The standard type of death penalty question, asked over and over again for more than half a century, leaves policymakers, scholars, and citizens with an incomplete picture of support, or potential support, for the death penalty.  We are far from the first to observe that the answer you get depends on the question you ask.  We have begun a project, though, of systematically trying to understand what these different responses can tell us about how many American voters support capital punishment. 

Both Gallup and Pew ask a generic question. Gallup asks, “Are you in favor of the death penalty for a person convicted of murder?” Although Pew gives more options to measure level of support, its question is otherwise nearly identical: “Do you strongly favor, favor, oppose or strongly oppose the death penalty for persons convicted of murder?” Other polling organizations tend to ask versions of this question as well. Yet, these questions do not distinguish between most murders and the specific kinds of aggravated murders that make someone eligible for the death penalty in the 27 American states that retain capital punishment.  If you oppose the death penalty for most murders, but not all murders, how would you answer the generic question?...

While we continue to conduct survey research on the death penalty, we wanted to share our main findings from surveys conducted in June 2019 and October 2020 because of the renewed debate of recent months and years. (We present our key findings in a report released by the Rose Institute of State and Local Government, Claremont McKenna College.)  In each survey, we used a three-part approach to gauging support for the death penalty.  First, we asked a version of a general question about the death penalty.  Second, we asked all respondents about the appropriateness of the death penalty for particular aggravated murders.  Third, we asked respondents for their opinion about a death penalty policy decision in their own states....

To provide a rough summary of our findings: We can divide the electorate into three groups of different sizes.  About a fifth of American voters oppose the death penalty in nearly every circumstance: These appear to be the truly committed opponents.  About three fifths reliably support the death penalty: they favor it in theory and also want to have a death penalty law in their state.  A final fifth of the American electorate approves of the death penalty in some way, in theory, but does not necessarily want the death penalty in their state. 

Framed this way, there is more support for the death penalty than the 55% (Gallup) or 60% (Pew) numbers might suggest. This is not to say those numbers are “wrong” (with similar questions, we find similar results), but just that they understate death penalty support for the kinds of aggravated murders that make an offender eligible for capital punishment in American states.  If a substantial proportion of death penalty “opponents” — as measured by Gallup and Pew — actually approve, at least theoretically, of the death penalty in some cases, their opposition is much softer than might be assumed.  As prior research on this subject has demonstrated, changing crime rates or different media coverage might drive up support again, and these types of voters could potentially be satisfied with laws that focused on a few highly aggravated murders, provided special safeguards against mistaken convictions, or had other features to mitigate their concerns about implementation.  Truly committed opponents are a small minority of voters. 

I am always glad to see more thorough efforts to gauge public opinion in a more granular way. But I wonder if polling on the death penalty could be even more accurate if persons were informed about the considerable costs and inevitable delays that always attend the application of the death penalty in the US.

In some sense, many of these issues will be on display this fall when the Supreme Court considers the reversal of the death sentence given to the Boston Marathon bomber in United States v. Tsarnaev.  Tsarnaev committed his horrific crime now more than eight years ago, and I suspect the many millions spent on lawyers and court actions to fight over a death sentence might seem like a waste of resources even to those who would say they generally support capital punishment in a poll.  Or maybe the awfulness of Tsarnaev's crime might lead even more persons to be death penalty supporters no matter the costs and delays.

August 18, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Tuesday, August 17, 2021

“The Case for a Presidential Task Force on 21st Century Prosecution"

The title of this post is the title of this notable new white paper produced by Fair and Just Prosecution.  Here is its executive summary:

THE NEED FOR A PRESIDENTIAL TASK FORCE ON 21ST CENTURY PROSECUTION

The United States currently incarcerates its residents at the highest rate of any democratic country in the world.  This system of mass incarceration disproportionately impacts Black and brown Americans, disrupts communities, and bloats budgets, all while impeding the mission of public safety it purports to promote.  Prosecutors wield a vast amount of discretion and authority within the criminal legal system — and therefore share responsibility for those systemic failings — yet they also hold the power to bring about systemic transformation.  The Biden-Harris administration has a vital role to play in catalyzing innovation and helping prosecutors nationwide chart a path to greater justice and equity for their communities.  A new generation of local elected prosecutors are modeling that potential and are reimagining the role of prosecutors. We propose a Presidential Task Force on 21st Century Prosecution to build on — and help perpetuate — that movement.

PROPOSED FOCUS

Seventeen pillars would serve as the basis for a series of hearings and focus the Task Force’s work:

  • Understanding the historical legacy of the prosecutor
  • Promoting deflection, diversion, and shrinking the system
  • Advancing racial and ethnic justice
  • Addressing the poverty penalty and bail reform
  • Promoting harm reduction, saving lives, and drug policy reform
  • Misdemeanor justice
  • Better serving crime survivors
  • Understanding, preventing, and addressing violence
  • Juvenile and young adult justice
  • Preventing officer-involved shootings and enhancing police accountability
  • Improving conditions of confinement
  • Implementing post-conviction justice, fair sentencing, and sentencing review
  • Accounting for collateral consequences and promoting expungement
  • Addressing mass supervision and improving reentry
  • Envisioning success, metrics, and culture change
  • Ensuring ethics, accountability, and transparency
  • Propelling change and investing in transformation....

GOALS AND OUTCOMES

We recommend that the Task Force produce:
  • A final report that identifies successful prosecutorial reforms and innovation, lays out key challenges to implementing change, details promising practices, and offers specific and tangible goals paired with policy and program recommendations that could include improving the safety and well-being of our communities, dramatically reducing jail and prison populations, ending racial disparities, and enhancing transparency and accountability;
  • A strategic roadmap to incentivize and fund change and innovation, including by encouraging and enabling specific federal laws, policies, resources, and grants to help support and propel systemic transformation; and
  • A concrete implementation plan, including the creation of an implementation oversight group and ongoing technical assistance from key federal government bodies and leaders.

August 17, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Noticing the notable number of public defenders among Prez Biden's judicial nominations

In this post a few weeks after Prez Biden assumed office, I asked "So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?". In that post, I noted the data showing the federal judiciary is badly skewed with a disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience, and I was hopeful Prez Biden would look to bring more balance to the federal bench.

Just over six month later, two new pieces detail that Prez Biden's track record here is pretty good and why this should be celebrated. Consider first this Bloomberg Law piece headlined "Public Defender Bench Aspirations Emboldened by Biden Nominees."  Here is an excerpt:

President Joe Biden’s nomination of several public defenders is part of a broader effort to add professional and demographic diversity to the judiciary.... Many federal public defenders who’d felt shut out from the bench now see their skills getting overdue recognition by the political establishment.  Biden’s nominations also may convince law students that “they’re not closing that door to being a judge just because they might pursue their public defender aspirations,” said Rachel Barkow, a New York University law professor.

Twelve of Biden’s 33 nominees so far for lifetime federal judicial appointments have public defender experience, and a handful of them have been confirmed.  They include Ketanji Brown Jackson, a former D.C. federal trial court judge and federal public defender, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit. Candace Jackson-Akiwumi, a former federal public defender in northern Illinois, was confirmed to the Chicago-based Seventh Circuit.

And at MSNBC, Chris Geidner has this new opinion piece headlined "Biden outshines Trump — and Obama — by appointing public defenders as judges." Here are excerpts:

Last weekend, the Senate confirmed Eunice Lee to a judgeship on the U.S. Second Circuit Court of Appeals.... Lee’s confirmation is remarkable for one due the fact that the judicial landscape is completely unrepresentative of the legal profession — and has been for a very long time. Her confirmation is a single, but important, effort to confront this imbalance.

If that sounds dramatic, just look at the number of judges with backgrounds as prosecutors.  As things stand, they overwhelmingly outnumber those with backgrounds as public defenders.  That imbalance is even more dramatic if you’re looking more broadly at whether the judge’s experience before taking the bench was in representing the government in any role or opposing it....

The law as we know it — or, more bluntly, as it is — is dramatically skewed by the experience imbalance among our judges. Broad swaths of the law like the court-created doctrine of qualified immunity — the protection against most lawsuits that government officials, particularly police officers and prison guards, receive — have been created by judges whose experience was often as prosecutors or otherwise representing the government’s interests instead of individual people’s interests....

Biden’s election over Trump raised hopes for a course correction in the federal judiciary. More than that, there also are the beginnings of change on the state level. This week, lawmakers in Virginia approved eight new judges to an expanded appeals court in the commonwealth, adding “two current and former public defenders and a longtime legal aid attorney — professional backgrounds that have never before been represented on one of the state’s high courts.”

These steps are good, but we can’t lose sight of the fact that they are just that: steps. Let’s assume that Biden continues nominating significant numbers of public defenders to the bench and, more unlikely, that other states take Virginia’s lead regarding their state courts. Even then, this imbalance on the bench would continue for the near future. It would take two or three presidencies, and an overwhelming number of governors and state lawmakers working to change their judiciaries, to see a real shift in the scales of justice.

These new judges being added to the mix, though, will nonetheless have an incredible opportunity, a chance to bring new perspectives to their colleagues and, through their opinions, to those of us who live under their rulings. They will be in the position to put some intellectual weight on the other side of the scale.

A few of many recent prior related posts:

August 17, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Highlighting the need and value of investing in criminal justice infrastructure in the form of good data

Amy Bach and Jeremy Travis have this notable new Hill commentary headlined "Don't ignore the infrastructure of criminal justice." I recommend the piece in full, and here are excerpts:

Advocates for criminal justice reform from different fields and backgrounds are all reaching the same conclusion: Any attempt at real, lasting change will require a significant investment in our ability to collect, store, and share data. We cannot confirm that new policies work without tracking their outcomes.  We cannot address racial injustice without data about policing practices, court processes, jail populations, and prison systems....

The country’s criminal justice data infrastructure is antiquated and crumbling.  State by state, we cannot track information about the people who are processed through our courts and jails.  Measures for Justice recently released a report documenting the extent of the country’s criminal justice data gap based on an analysis of 20 states.  In seventeen, court data on indigent defendants was entirely unavailable. In eighteen, data about the pretrial process, such as bail, detention and release practices, were practically nonexistent.  These findings scratch the surface of a nationwide problem: We can’t access information necessary to measure the success (or failure) of politically controversial reforms, such as the elimination of cash bail, or hold informed, productive debates about the next steps.

Similarly, as the nation grapples with the spike in gun violence, it remains striking how little we actually know about the use — and misuse — of firearms.  Last year the Expert Panel on Firearms Data Infrastructure, convened by the nonpartisan and objective research organization NORC at the University of Chicago, released a report documenting how the federal government can repair and expand our disordered and segmented gun data systems.  Any reasoned debate on firearms policy requires a shared set of facts — and the nation simply doesn’t have those facts....

[Current political debates] all underscore the need to improve data infrastructure for our sprawling, uncoordinated, and incredibly expensive criminal justice system.  State and federal spending on criminal justice has grown almost 400 percent over the past 20 years — one of the fastest-growing line items in state budgets — yet we remain unable to answer simple questions about how it functions....

Closing the country’s data gap will require setting national standards for data collection and release.  Congress also needs to provide support and incentives for the local agencies that all too often rely on outdated data collection systems — if they have a system at all.  The task may seem daunting, but it is well within the abilities — and budget — of Congress and the White House to tackle....

But without a solid foundation for evidence-based policy making, it becomes impossible to track outcomes.  Reform is stifled.  Racial discrepancies continue.  Failed promises and opaque systems undermine public trust.  In the same way that roads or education are foundational to a larger economic project, good data serve as a foundation for the larger project of public safety and racial justice.  It is a project that Congress cannot ignore.

August 17, 2021 in Data on sentencing, Who Sentences | Permalink | Comments (0)

"Can Restorative Justice Conferencing Reduce Recidivism? Evidence From the Make-it-Right Program"

The title of this post is the title of this new NEBR working paper authored by Yotam Shem-Tov, Steven Raphael and Alissa Skog. Here is its abstract:

This paper studies the effect of a restorative justice intervention targeted at youth ages 13 to 17 facing felony charges of medium severity (e.g., burglary, assault).  Eligible youths were randomly assigned to participate in the Make-it-Right (MIR) restorative justice program or to a control group in which they faced criminal prosecution.  We estimate the effects of MIR on the likelihood that a youth will be rearrested in the four years following randomization.  Assignment to MIR reduces the likelihood of a rearrest within six months by 19 percentage points, a 44 percent reduction relative to the control group.  Moreover, the reduction in recidivism persists even four years after randomization.  Thus, our estimates show that juvenile restorative justice conferencing can reduce recidivism among youth charged with relatively serious offenses and can be an effective alternative to traditional criminal justice practices.

August 17, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, August 16, 2021

An effective (but already quite dated) reminder that US mass incarceration has been getting a bit less mass (but still globally exceptional)

FT_21.08.12_Incarceration_2John Gramlich over at Pew Research Center has this effective new posting under the headline "America’s incarceration rate falls to lowest level since 1995." The piece looks at some data on US incarceration rates and puts them in a bit of historical and global context.  Unfortunately, the analysis is drawn from data as of the end of 2019, and a heck of a lot has obviously changed over the last 20 months.  In particular, as documented through March 2021 by the Vera Institute, there is a reasonable basis to think incarceration rates may have dropped an addition 10 to 15 percent (or more) since the end of 2019.  Still, the Pew discussion sets a useful marker for where we were heading into the pandemic, and here is some of the discussion (with links from the original):

The U.S. incarceration rate fell in 2019 to its lowest level since 1995, according to recently published data from the Bureau of Justice Statistics (BJS), the statistical arm of the Department of Justice. Despite this decline, the United States incarcerates a larger share of its population than any other country for which data is available.

At the end of 2019, there were just under 2.1 million people behind bars in the U.S., including 1.43 million under the jurisdiction of federal and state prisons and roughly 735,000 in the custody of locally run jails. That amounts to a nationwide incarceration rate of 810 prison or jail inmates for every 100,000 adult residents ages 18 and older.

The nation’s incarceration rate peaked at 1,000 inmates per 100,000 adults during the three-year period between 2006 and 2008. It has declined steadily since then and, at the end of 2019, was at the same level as in 1995 (810 inmates per 100,000 adults).

The number of prison and jail inmates in the U.S. has also decreased in recent years, though not as sharply as the incarceration rate, which takes population change into account. The estimated 2,086,600 inmates who were in prison or jail at the end of 2019 were the fewest since 2003, when there were 2,086,500. The prison and jail population peaked at 2,310,300 in 2008....

A variety of factors help explain why U.S. incarceration trends have been on a downward trajectory. Violent and property crime rates have declined sharply in recent decades despite a more recent increase in certain violent crimes, especially murder. As crime has declined, so have arrests: The nationwide arrest rate has fallen steadily over the long term.

Changes in criminal laws, as well as prosecution and judicial sentencing patterns, also likely play a role in the declining incarceration rate and number of people behind bars. In late 2018, for example, then-President Donald Trump signed a law aimed at reducing the federal prison population. In its first year, the law led to shorter sentences for thousands of federal offenders and earlier release dates for many others, according to a 2020 report from the U.S. Sentencing Commission.

Despite these downward trends, the U.S. still has the highest incarceration rate in the world, according to the World Prison Brief, a database maintained by the Institute for Crime & Justice Policy Research at Birkbeck, University of London.  The database compares incarceration rates across more than 200 countries and territories using publicly available data for each jurisdiction....

In addition to its high rate of incarceration, the U.S. also has the largest overall number of people behind bars. With more than 2 million jail and prison inmates, the U.S.’s total incarcerated population is significantly greater than that of China (approximately 1.7 million) and Brazil (about 760,000).  But data limitations in China and other countries make direct comparisons with the U.S. difficult. The World Prison Brief notes, for instance, that China’s total excludes people held in pre-trial detention or “administrative detention” — a group that may number more than 650,000. China’s total also excludes the estimated 1 million Uyghur Muslims who are reportedly being detained in camps in the Xinjiang autonomous region.  If these two groups were added to the total, China would far surpass the U.S. in terms of its total incarcerated population.

August 16, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (1)

En banc Third Circuit upholds 65-year juvenile sentence in Grant more than three years after bold panel ruling

In this post way back in April 2018, I noted a remarkable Third Circuit panel opinion in US v. Grant, addressing the application of Eighth Amendment limits on juvenile sentences while vacating  a 65-year federal prison term for a 16-year-old offender.  Among other points, the original split panel opinion in Grant held that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  But six months later, as detailed in this October 2018 post, the active judges voted for rehearing en banc in Grant upon the government's petition and the original opinion and judgment were vacated. 

Now, nearly three years later, the en banc Third Circuit has finally ruled in favor of the government US v. Grant, No. 16-3820 (3d Cir. Aug. 16, 2021) (available here).  Here is how the en banc majority opinion in Grant now starts:

A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile.  The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines.  Parole is unavailable to those convicted of federal crimes, so the sentence effectively condemned Grant to die in prison — with proof of circumstances warranting compassionate release his only hope.

In 2012, the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460, which held that the Eighth Amendment permits a life-without-parole (“LWOP”) sentence for a juvenile homicide offender only if the sentencer could have imposed a lesser punishment based on the offender’s youth at the time of the offense.  Later, the Court made Miller retroactive to cases on collateral review.  Montgomery v. Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sentence was imposed mandatorily, Miller entitled him to a new sentencing.

At resentencing, the District Judge noted Grant’s minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability.  The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant’s total sentence was effectively reduced to 65 years.

Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not.  But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant’s youth at the time of his offenses. And that is what he received. So we will affirm Grant’s 65-year sentence.

In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts.  But Grant did not preserve this argument, and the District Court’s failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.

This opinion was a long time coming no doubt in part because the en banc court likely was eager to await the Supreme Court's latest pronouncement on the application of Miller. Recall that SCOTUS granted cert in the Malvo case to address the proper retroactive application of Miller way back in March 2019, though only finally spoke on this topic in the replacement Jones v. Alabama case this past April.  Unsurprisingly, this Grant ruling leans heavily on Jones, and seeing how Jones is being applied in this context provides one reason for sentencing fans to check out this new ruling.

But hard-core Eighth Amendment fans will want to make sure they also check out some of the additional opinions, particularly a 15-page concurrence authored by Judge Hardiman and joined by three other judges.  That opinion attacks the Supreme Court's “evolving standards of decency” test for having a history "marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People." And it concludes this way:

The story of the evolving standards of decency test — from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land — has created more problems than it has solved.  Its inscrutable standards require judges to eschew the law as written in favor of moral sentiment.  The only constant is that more and more laws adopted by the People’s representatives have been nullified.  And the People have no practical way to reverse this contrived ratchet.
This Court, relying on a careful review of the Supreme Court’s Eighth Amendment precedents, reaches the right conclusion for the right reason.  But if the Supreme Court continues to apply “the evolving standards of decency” test, I wonder what will be the next stop on this runaway train of elastic constitutionalism?  As Chief Justice Roberts cautioned nine years ago: there is “no discernable end point.”

August 16, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Might "big change" in New York leadership include a better record on clemency?

I got to thinking today that the coming resignation of Andrew Cuomo will end a particularly disappointing recent chapter in state clemency activity.  Notably, in the wake of Prez Obama;s 2014 Clemency Project, NY Gov Cuomo started talking big about NY clemency efforts in 2015 and again in 2017 (see posts here and here).  But, after talking the talk, Gov Cuomo thereafter never actually delivered significant results.  Here were a few prior posts covering some of Gov Cuomo's pre-COVID failings as of January 2020:

And here are just a few of a number of press pieces from the COVID era highlighting that Gov Cuomo's clemency record did not improve during the pandemic: "While COVID-19 Spreads In NY Prisons, Loved Ones On The Outside Plead With Cuomo For Clemency" and "Prisoners Hoping for Mercy Place Little Faith in Cuomo."  (It is also worth recalling a story detailing that Gov Cuomo was not inspiring as to other prison policies during the pandemic: "Judge says Cuomo's prison COVID-19 vaccine policies were 'arbitrary and capricious'.")

The headline of this recent CBNC piece about the leadership transition in Albany, "Kathy Hochul vows big change from ‘toxic’ Cuomo administration, will fire ‘unethical’ staffers," has me hoping that "big change" in Albany will include a whole new approach to clemency.  After very disappointing work by Gov Cuomo, I hope that a new Gov brings some new hope to clemency advocates in New York.  For a host of reasons, I think it would be unrealistic to expect the incoming Gov to prioritize clemency issues right away, but I also think advocates would be wise to urge her to use her clemency pen as another way to distinguish herself from her predecessor.

August 16, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, August 15, 2021

Various tales from prison in incarceration nation

A variety of headlines caught my eye this week on topics relating prisons and prisoners.  Here is a round up of some of them:

From ABA Journal, "Private prisons are a failed experiment with 'perverse and immoral incentives,' ABA House says in calling for their end"

From the AP, "Transgender inmates' rights violations 'ongoing' in IL prisons, federal judge says"

From the California Globe, "California Supreme Court Rules 5-2 That Prisoners Cannot Possess Marijuana While In Prison"

From MarketWatch, "Exclusive: Bernie Madoff’s harrowing final days: hallucinations, dire medical conditions, and waiting for the end to come"

From the Marshall Project, "These Meds Prevent Overdoses. Few Federal Prisoners Are Getting Them."

From the Marshall Project, "Stopping Violence Over Prison Phone Time? There’s an App for That."

From Insider, "COVID allowed Raquel Esquivel and 4,500 others to be released from overcrowded federal prisons. So why is she back behind bars?"

From NBC News, "Prison suicides have been rising for years. Experts fear the pandemic has made it worse."

From Quartz, "Prisons are where America most needs vaccine mandates"

From Slate, "Prisons Are Increasingly Banning Physical Mail"

From the Washingtonian, "Accused January 6 Rioters Complain About Conditions in DC Jail"

August 15, 2021 in Prisons and prisoners | Permalink | Comments (2)

"Bridging the Gap: A Practitioner’s Guide to Harm Reduction in Drug Courts"

The title of this post is the title of this notable new report from the Center for Court Innovation and authored by Alejandra Garcia and David Lucas. Here is the first part of the report's introduction:

Drug law reforms across the country are trending toward decriminalization and public healthinformed responses, and away from the carceral strategies of the past. These historic changes are likely to impact drug court operations significantly. Fewer drug-related arrests means fewer referrals to drug courts, and a lighter hand in sentencing will reduce the legal leverage that has long been used to incentivize participation. The overdose crisis, COVID-19, and renewed demands for racial equity and legal system transformation have also given rise to a more expansive discourse around drug use, mental health, and community safety. Alongside this shift, harm reduction initiatives are being supported at the local, state and federal level on a scale never seen before.

At their inception, drug courts represented a new way of thinking about the intersection of addiction and crime in society. Offering a treatment alternative to jail or prison, the model aimed to address the harms — and ineffectiveness — of incarcerating drug users. Today, however, criminal legal system reformers are calling into question some of the model’s most defining features, which remain largely coercive and punitive. Moving forward, drug courts can expect to face increasing pressure from public health experts and harm reduction advocates to abandon the abstinence-only model, eliminate jail sanctions, and overhaul their drug testing protocols.

This document is an attempt to provide a fresh perspective on several foundational drug court practices and the inherent challenges of this work. It argues that the most effective way for drug courts to evolve — and do less harm — involves integrating the practices and principles of harm reduction. Drug courts and the harm reduction movement will continue to co-exist for some time and face similar system barriers while serving many of the same people. As such, this document represents a conversation that is new and necessary — one that aims to bridge the gap between these contrasting paradigms for the benefit of those who participate in drug courts.

August 15, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, August 13, 2021

Notable look at public health impacts of drug-induced homicide laws in rural North Carolina

I just came across this notable new article in the International Journal of Drug Policy by multiple authored titled "Drug induced homicide laws may worsen opioid related harms: An example from rural North Carolina." Here is its abstract:

Drug-induced homicide (DIH) laws typically allow for the prosecution of drug distribution resulting in an overdose fatality as equivalent to homicide or manslaughter. Despite vigorous debate about the appropriateness of DIH laws as a response to overdose, the public health impacts of this increasingly common prosecutorial strategy remain unknown. In this policy analysis, we take up the question of how DIH prosecutions impact local persons and communities through the lens of a high-profile DIH conviction that took place in Haywood County, a rural county located in the Appalachian region of western North Carolina. Describing insights gained from two unrelated but overlapping studies carried out in Haywood County, we identify several plausible mechanisms through which DIH laws may negatively impact public health. Among these are disruptions to the local drug market and deterrence from calling 911 when witnessing an overdose. With the number of DIH prosecutions growing rapidly, more research on the public health impacts of DIH laws is urgently needed. 

A few of many prior related posts:

August 13, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (0)

"Restorative Retributivism"

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

The current criminal justice moment is ripe for discussion of first principles.  What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration.  One theory recently put forth — reconstructivism — purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system.  It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts.  In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good.  Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories.  It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted.

This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment.  While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological.  In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism.  Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism.  Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations.  This distinction has implications for how each theory might critique modern criminal law and punishment.  For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration — skeptically, and the modern approach to punishment — both in theory and its carceral form — as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing.  This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good.  It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization.  In sum, reconstructivism and restorative retributivism are relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.

August 13, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, August 12, 2021

Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison

As detailed in this new Hill article, "two top Democrats on the Senate Judiciary Committee are calling on President Biden to quickly adopt a plan to keep thousands of federal inmates who were transferred to home confinement during the pandemic out of prison."  Here is more:

Sen. Dick Durbin (D-Ill.), the committee's chairman, and Sen. Cory Booker (D-N.J.), who chairs a subcommittee on criminal justice, are urging Biden in a letter sent to the White House on Thursday to use the "ample executive authority" at his disposal to ensure that those on home confinement are not sent back to prison.

"Given the breadth of available executive authority, no person who has successfully transitioned to home confinement should be required to return to federal prison," Durbin and Booker wrote in the letter, which was shared with The Hill.  "The uncertainty of the current situation unnecessarily interferes with the efforts of those on home confinement to rebuild their lives and participate in our economic recovery.  With the goal of facilitating successful community reentry, we urge you to act immediately to resolve this issue and enable those on release to move forward with their lives."

The full two-page letter is available at this link, and here are excerpts:

We respectfully request that your Administration take immediate action to ensure that thousands of individuals who have successfully transitioned to home confinement from federal prison during the pandemic are not returned to prison without cause.  Your Administration has ample executive authority to immediately provide the certainty these returning citizens deserve as they reintegrate into their communities, reunite with their families, and join in rebuilding our economy....

On January 15, 2021, in the last days of the Trump Administration, the Department of Justice Office of Legal Counsel issued a memorandum opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (“OLC opinion”).  The OLC opinion incorrectly found that following the emergency period of the pandemic, BOP must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities. In fact, the CARES Act does not require or permit BOP to recall these prisoners.

On April 23, 2021, we asked Attorney General Garland to rescind the OLC opinion, and are awaiting his response.  However, the opinion does not prevent you from acting. We urge you to use your unfettered pardon power to immediately commute the sentences of those on home confinement pursuant to the CARES Act.  These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement.  They have reunited with family, obtained jobs, and are abiding by the conditions of their release.

Additional executive authorities are also available. BOP can provide relief for certain individuals through prerelease home confinement, under 18 U.S.C. § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 U.S.C. § 60541(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A).  Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.

Some of many prior related posts:

August 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another round of terrific essays at new Inquest website

I am at risk of sounding like a broken record here as I keep blogging about the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  But even though I have already flagged nearly a dozen of the great essays that were at the site before this week, I still feel compelled to add this post to spotlight these three more must-reads added this week:

From Charles Fried, "A Failure of the Imagination: Like torture and the death penalty, mass incarceration is life-destroying. And indefensible."

From Darcy Covert & A.J. Wang, "A Most Carceral Friend: The Justice Department’s top Supreme Court lawyer is far more committed to helping prosecutors win convictions and keep people locked up than to 'doing justice'."

From Colin Doyle, "The Feature Is the Bug: For all the criticism they get, algorithms can be unlikely allies in exposing deep, structural injustices that entrench mass incarceration."

August 12, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Highlighting the persistent problems from the US's high recidivism rate

Liz Benecchi has this effective new piece at the Harvard Political Review under the headline "Recidivism Imprisons American Progress." I recommend the full piece, and here are excerpts:

Each year, more than 600,000 individuals are released from state and federal prisons. Another nine million are released from local jails.  Within three years of their release, two out of three former prisoners are rearrested and more than 50% are incarcerated again.  This process of previously convicted criminals reoffending and reentering the prison system is known as recidivism.

Recidivism clogs the criminal justice system. Without employment opportunities and bare necessities such as housing, food, or clothing, successful reentry into society seems nearly impossible for former prisoners.

America’s recidivism crisis is far more alarming than any other democratic country in a similar economic bracket.  If prison were teaching the “lessons” corrections workers claim it does, it is concerning that so many of the same prisoners end up back behind bars.  The country’s high recidivism rate alone demonstrates that our prisons are as ineffective as they are inefficient, a sobering reality which calls for a reimagined criminal justice system....

Since the 1960s, the U.S. incarceration rate has more than tripled. Defunding rehabilitation in our justice systems directly correlates with the increase in the incarceration rate.

To put it plainly, unhealthy minds can’t make healthy choices.  The reality is 37% of incarcerated individuals and 44% of those in jail have been diagnosed with a mental health illness.  Yet, 66% of prisoners reported not receiving any form of mental health care during the full length of their incarceration.  With more accessible mental health care and substance abuse recovery for prisoners, they can be properly diagnosed and receive comprehensive treatment.  With these revamped forms of relief and stabilization, the probability that those with mental illness relapse into destructive habits is far more unlikely than if they receive no treatment at all. Our justice system has an obligation to prepare prisoners for a safe and successful reintegration, a process which starts with a healthy mind.

Prisoners who participate in education programs have a 43% lower chance of being reincarcerated than those who do not, and for every dollar spent on prison education, the government saves four to five dollars on the costs of reincarceration. Education can do wonders, and if incarcerated people left the system with degrees and hard educational skills, it would be far less difficult for them to secure and maintain steady jobs. Besides allowing the formerly incarcerated to pursue a job, education — whether that be through adult literacy, GED, or post-secondary programs — inherently shapes one’s decision-making abilities....

When prisoners are released in Norway, they stay out of prison. Norway has one of the lowest recidivism rates in the world at 20%.  The U.S. has one of the highest: 76.6% of prisoners are rearrested within five years.  Among Norway’s prison population that was unemployed prior to their arrests, they saw a 40% increase in their employment rates once released.  The country attributes this to its mission of rehabilitation and reemergence into society through its accepting and empathetic approach....

Today’s recidivism crisis calls for a paradigm shift from prisons as punitive institutions to rehabilitative ones. Implementing the rehabilitating practices of prioritizing mental health care, education, and the process of creating a prison-to-work pipeline would lower the rates of recidivism in the United States. Lower rates of recidivism do not singularly benefit society by reducing the rate of crime but also by reducing prison populations, saving taxpayers’ dollars, and most pertinently, ensuring that prisons are serving their purpose of reform and improvement.

August 12, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, August 11, 2021

Part 3 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20282e1172fad200b-320wiIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the third and final post of this set (following the first and second).

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In two previous blogs about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I described its thesis that risk assessment instruments (RAIs) can reduce incarceration in a cost-effective manner, and the “jurisprudence of risk” it advances that aims to ensure accurate and fair instruments that, among other things, avoid racially disparate outcomes.  To take full advantage of risk assessment’s potential for curbing incarceration and rationalizing sentencing, however, we must also rethink our current punishment regime, which is another goal of the book.

In the past 50 years, a large number of states have moved away from indeterminate sentences controlled by parole boards toward determinate sentencing, which shifts power to prosecutors who can now essentially dictate the sentence received after trial through the charging decision.  Most of the states that have not adopted determinate sentencing have effectively gone in the same direction by significantly circumscribing the authority of parole boards to make release decisions.  These changes were understandable, given the dispositional disparities that occurred with indeterminate sentencing, the checkered history of parole boards, and the difficulty of assessing risk and rehabilitative potential.

With the advent of more accurate and objective predictive algorithms, however, indeterminate sentencing should be given a second chance. More specifically, while judges should still impose a sentence range that is determined by desert, risk-needs algorithms should be instrumental in determining whether offenders who are imprisoned stay there beyond the minimum term of that sentence.  Sentencing would no longer be based on convoluted front-end calculations which attempt to divine the precise culpability of the offender, tempered or enhanced by the prosecutor’s or the judge’s speculative intuitions about deterrence, risk or rehabilitative goals.  Rather, after the judge imposes the retributively-defined sentence range based on the charge of conviction, offenders would serve the minimum sentence (which for misdemeanors and lower level felonies may not involve prison), and only be subject to prolonged restraint if they are determined to be high risk via a validated RAI.  In this form of limiting retributivism, desert would set the range of the sentence, risk its nature and duration.

With this type of sentencing system, not only will the arbitrariness of the old parole-driven scheme be reduced, but the power structure within the criminal justice system will be profitably re-oriented.  Today, the plea bargaining process allows prosecutors to threaten draconian sentences that bludgeon defendants, even innocent ones, into accepting convictions without trial.  If, instead, post-trial dispositions within the sentence range depend on a parole board’s determination of risks and needs, the ultimate disposition after a trial will be unknowable, and prosecutorial bargaining power inevitably would be reduced. Defendants can turn down prosecutorial offers with virtual impunity if they are considered low risk.  And even high risk defendants might want to roll the dice with the parole board. Innocent people would be much less likely to plead guilty, and guilty people would be much less likely to acquiesce to harshly punitive bargains.  The prosecutor’s main leverage will come from offers of reduced charges or alternatives to prison, because with parole boards controlling release, threats to recommend the maximum sentence to the judge will be meaningless.

These proposals may appear to be radical. But in fact they merely reinstate a version of the sentencing regimes that existed in much of this country before the middle of the twentieth century, when dispositions were more flexible and plea bargaining and guilty pleas were less dominant.  At the same time, a key difference in these proposals, and the primary reason rejuvenating indeterminate sentencing is justifiable, is the reliance on risk assessment algorithms.  Without them, judges and parole boards are simply guessing about dangerousness, and their default judgment — absent heroic efforts to resist public pressure and normal human risk-averseness — will be to find that offenders pose a high risk of reoffending.  With them — and assuming their results are treated as presumptive — judges who refuse to imprison an offender and parole boards that make a release decision can point to known base rates (which, in the case of violent crime, are very low) and can blame the algorithm if things go awry.

The overarching hypothesis of this book is this: Whether implemented prior to trial in lieu of the bail system, or post-conviction in lieu of unstructured predictive decision-making, just algorithms can be a central component of any effort to reduce the human and financial cost of incarceration, without sacrificing public safety.  That hypothesis may be wrong, but it is worth a fair test.  Because when developed and used in a manner consistent with a coherent jurisprudence of risk, algorithms could be the single most potent mechanism we have for bringing about real reform of the American criminal justice system.

I want to thank Doug Berman again for letting me describe my book on his Sentencing Law & Policy Blog.

August 11, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"The Case for Pattern-and-Practice Investigations Against District Attorney’s Offices"

The title of this post is the title of this new article authored by Rory Fleming.  Here is its abstract:

Prosecutorial misconduct is a serious issue and one that is notoriously hard to combat.  Frustrated with the inaction from state bars, reformers have embraced alternative accountability strategies, such as prosecutor elections and civilian review boards.  Another tool for additional accountability is the pattern-and-practice investigation under 42 U.S.C. § 14141.  Frequently used as a federal intervention tool against errant police departments, the statute has only been used the local prosecutor context once.  Even so, it has untapped potential as a tool to make consistently high-problem local prosecutor's offices comply with their ethical duties under the rules in Brady, Batson, and other Supreme Court decisions.  Upon finding that the evidentiary threshold of a pattern of practice of constitutional violations has been met, the Justice Department can negotiate a settlement agreement that legally binds the local prosecutor's office to take action to ameliorate the issues leading to the status quo.  Several factors, such as a local prosecutor's jurisdiction experiencing a particularly high number of reversals due to misconduct and striking a particularly high number of minorities during voir dire, should inform DOJ's priorities, if it decides to act. 

August 11, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses

In a number of prior posts (some linked below), I have spotlighted discussions and debates over whether and how past military service can and should be brought to bear at sentencing.  Against that backdrop, I was intrigued to see this local report on a new state law headlined "Minnesota officials laud Veterans Restorative Justice Act as an 'opportunity to have another path'."  Here are the particulars:

Minnesota veterans that commit a criminal offense as a result of a service-related condition could be granted a pathway to restitution without jail time under a measure approved by the Legislature and signed into law by Gov. Tim Walz....

The so-called Veterans Restorative Justice Act sets up alternate courses through the criminal justice system for veterans that struggle with injuries, substance abuse, post-traumatic stress disorder, military sexual trauma or chemical exposure.  Veterans facing lower-level offenses would be eligible to be placed on probation and complete rehabilitation and county programming rather than going to jail.  And those who completed their rehabilitation and treatment requirements could see their charges wiped away under the program.

Veterans courts allow for similar opportunities in certain parts of the state, but the law will make those options available statewide, the law's supporters said.  "This is an opportunity for those veterans that are having those difficulties with the reintegration to have some help and assistance, something other than just going to jail, this gives them an opportunity to have another path," Department of Veterans Affairs Commissioner Larry Herke said.

Jeff Johnson, a Ramsey County Veterans Court graduate, said completing the treatment and rehabilitation programs required through the specialty court helped him reacclimate to civilian life after 24 years of active duty service. "When I got out, I'll be honest with you, even though I grew up here in Minnesota ... I felt like a Martian. It takes a lot of adjustment to figure out the society I hadn't participated in in 24 years," Johnson said. "(Veterans Court) is not a place where a veteran gets his or her life back, not in the least. They get a new life."

Advocates spent years attempting to pass the proposal in St. Paul before the divided Legislature agreed to advance it earlier this year.  And both Democrats and Republicans on Tuesday commended the veterans advocacy organizations for keeping up the push to get the proposal through the Statehouse.

Some (of many) prior related posts:

August 11, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Notable accounting of rarity of released juvenile lifers getting in trouble again in Michigan

This local story from Michigan, headlined "Crime by ‘juvenile lifers’ after prison ‘very rare,’ state says," provides an interesting overview of how juve lifers have been faring after release in the Wolverine State. Here are the details:

When a shotgun-toting convicted murderer held police at bay for seven hours in Barry County, it prompted Target 8 to check into the records of other “juvenile lifers” released from prison.

Timothy Riddle was 15 years old when he killed an elderly Wayne County woman in 1988 while robbing her home. Riddle served 28 years in a Michigan prison before he was released in 2017, after the U.S. Supreme Court ruled mandatory life sentences for juveniles unconstitutional. His parole ended in early November 2019 and records show his run-ins with police began less than two months later. Since then, he’s been arrested eight times for crimes ranging from shoplifting to larceny and assault.

Riddle was wanted for a series of break-ins Wednesday when Hastings police spotted him and chased him through Barry County. The 48-year-old ultimately barricaded himself for seven hours inside a gas station in the small town of Woodland. He fired a shot inside the store, but police said it appeared he was not trying to hit anyone. No one was injured and Riddle was arrested.

According to the Michigan Department of Corrections, 142 juvenile lifers have been released from prison following resentencing per the U.S. Supreme Court decision. Riddle is the only known arrest. “This is a very rare case,” wrote Chris Gautz, an MDOC spokesperson, in an email exchange with Target 8.

In Michigan, former prisoners are considered recidivists — or repeat offenders — if they end up back in prison within three years of their release. “Most of the (juvenile lifer) releases are too current to be tracked for ‘recidivism,’ (but) overall, this population appears to do well on supervision before discharging from our jurisdiction,” Gautz said.

While MDOC may deem it too early to assess recidivism rates among former juvenile lifers, attorney Deborah Labelle noted the rate would be less than 1%. That’s compared to a 26% recidivism rate among the general prison population.

“Mr. Riddle is the only juvenile lifer that I am aware has even been arrested,” Labelle wrote in an email to Target 8. “(Juvenile lifers’ recidivism) is extraordinarily low,” Labelle said. “There are many who are having spectacular achievements and many more who have reentered and are working and raising families, helping nieces, nephews and siblings, while they build their lives.”

Labelle is an Ann Arbor attorney who fought the state on behalf of hundreds of juvenile lifers in Michigan prisons. So far, the state says 258 people have been resentenced, 142 of whom have since been released from prison.

Labelle spoke of one former juvenile lifer who recently completed college in Arizona and works as a counselor. She said another is working for a prosecutor’s office and applying to law school after getting his master’s in social work....

Even with the many successes, advocates said more resources are needed to help former juvenile lifers make the transition back into society. “What we see time and time again is that people do need one-on-one support,” said Marilena David-Martin of the State Appellate Defender Office. “It’s not easy to come home from prison after serving 40 years and then figure out how to be.”

August 11, 2021 in Assessing Miller and its aftermath, Reentry and community supervision | Permalink | Comments (0)

Tuesday, August 10, 2021

Democratic Senators praise AG Garland's capital moratorium and urge additional steps

As reported in this Hill article, a group of 17 Democratic Senators sent a notable letter to AG Garland this week in which they "voiced their approval of Garland's decision to issue a moratorium on federal executions while the Department of Justice reviews policies and procedures."  This letter is available at this link, and it begins this way:

We commend you for your recent decisions to impose a moratorium on federal executions pending a review of death penalty policies and procedures and to withdraw several notices of intent to seek the death penalty that the Justice Department filed during the Trump Administration.  These are important steps toward ending the injustice of the death penalty.  We urge you to take the additional steps of withdrawing all pending death notices, and authorizing no new death notices, while your review proceeds.

As your memorandum announcing the moratorium recognizes, there are serious concerns about arbitrariness in the application of the death penalty, its disparate impact on people of color, and the alarming number of exonerations in capital cases.  These concerns justify not only a review of the procedures for carrying out the death penalty, but also support halting its use — including prohibiting federal prosecutors from seeking the death penalty — during the review process.

August 10, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Another reminder that "old law" federal prisoners are still awaiting compassionate equal treatment

A few months ago, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are not currently able to apply to a judge for compassionate release under the FIRST STEP Act. NPR returned to this story recently with this new piece headlined "Some Older Prisoners Aren't Eligible For Compassionate Release. Lawmakers Want Change." Here are excerpts:

COVID-19 has exacted a terrible toll inside America's prisons, spreading there at six times the rate as among the general population. The coronavirus pandemic motivated tens of thousands of incarcerated people to request early release on the grounds that their old age and health troubles made them especially vulnerable.

But the Federal Bureau of Prisons told lawmakers that of the nearly 31,000 prisoners to request compassionate release, the BOP approved just 36. Thanks to Congress, many had another option.  The First Step Act gave them the opportunity to go to court and persuade a judge they should win compassionate release.  More than 3,000 people have won their freedom that way during the pandemic.

But that law overlooks a small group of people in federal prison who were convicted of crimes before November 1987. One of them is Kent Clark.  NPR focused on Clark and other "old law" prisoners in a story this year.  Clark's cousin said Clark had lost his memory during his 31 years in prison.  After the story ran, public defender Rahul Sharma finally got Clark's medical records.

"They showed he has moderate to severe dementia, borderline blindness, tooth loss, severe depressive disorder, gout, cardiac arrhythmia and honestly just severe pain throughout his body," Sharma said.  He said Clark had been wandering into other people's prison cells and kept a list of things he needed to remember to do every day, like going to the bathroom and wearing a mask.  "It was found by the facility, by the prison, that he was a real danger to himself, given the severity of his dementia," Sharma said.

Clark has now been moved to a hospital in Florida where he's guarded by corrections officers, with one arm chained to the hospital bed and irons on his legs.  The warden has denied Clark's request for compassionate release.  Sharma said Clark, now 66, is deteriorating rapidly.

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading efforts to make "old law" prisoners eligible to petition a judge for compassionate release.  A bill moving through Congress would change the law to make "old law" prisoners eligible to petition a judge for compassionate release.  The Senate Judiciary Committee advanced the measure by a bipartisan vote of 14-8 in May.

Democrats hope to bring it to the full Senate this fall, saying the bill would fix a glaring injustice.  Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading the charge.  "'Old-law' offenders are some of the most vulnerable and deserving of relief in federal prisons," Durbin said in a written statement.  "There is no logical or moral reason to exclude these offenders from the opportunity to petition the court for compassionate release."  Durbin called it a "modest, but necessary" reform and pointed out that the top Republican on the committee, Chuck Grassley of Iowa, is on board.

But some Republican senators, like Arkansas' Tom Cotton, are resisting.  "Most of this bill is just an expansion of criminal leniency policies for serious offenders under the guise of protecting inmates," Cotton said at a committee meeting this summer.

Mary Price, the general counsel of FAMM, a group that advocates for incarcerated people and their families, said that giving people in prison the option of petitioning a judge for release is not a "get-out-of-jail-free card."  Indeed, Price said, only about 20% of people in prison who sought compassionate release during the pandemic have been approved by judges.

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Earned time credits set up by FIRST STEP Act subject to notable litigation

Though easily forgotten with all the COVID era issues and concerns, one the biggest and potentially most consequential elements of the FIRST STEP Act was its creation of a system of "earned time credits."   This part of the Act would enable certain inmates under certain circumstances to earn increased time in pre-release custody (i.e., to move from prison to a halfway house and/or home confinement).  I recall thinking at the time of FIRST STEP enactment that a robust approach to "earned time" could prove to be very consequential for incarcerated individuals while a limited approach to "earned time" could significantly reduce its potential and importance.  Against that backdrop, I am not surprised to see this new Reuters piece headlined "U.S. Justice Dept clashes with inmates over credits to shave prison time."  Here are basics:

The U.S. Justice Department asked a judge on Tuesday to deny a bid by four low-level federal inmates to qualify for early release under a new criminal justice reform law that allows shortened prison terms through recidivism-reduction programs.

In the U.S. District Court in Oregon, federal prosecutors said no program or activity the inmates took part in qualify for earned time credits. The inmates' public defender and some lawmakers have said the Bureau of Prisons' (BOP) criteria are too strict....

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days' credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs. In a January 2020 proposal, the BOP defined a day of participation as 8 hours and limited the menu of qualifying programs.

"The math speaks for itself," federal defenders wrote in a January 2021 letter to BOP. "It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP's proposed rule."

In Tuesday's case, lead plaintiff Adrian Cazares is serving a 71-month sentence for cocaine importation. He has held prison jobs such as a painter and an HVAC worker, and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. None of those are on the BOP's approved list, prosecutors said.

"If HVAC work doesn't qualify, what kinds of jobs do?" asked Magistrate Judge John Acosta, noting the program's goal of reducing recidivism and facilitating reintegration into society.

"The ones that are identified by the Bureau of Prisons," federal prosecutor Jared Hager replied, noting the inmates have "not shown entitlement to any credit." The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

A few prior related posts:

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another rounds of terrific new essays in Brennan Center's "Punitive Excess" series

highlighted here a few months a terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I am pleased to see that new essays are continuing to be added to the series, and here are the three most recent entries everyone should be sure to check out:

Prior related posts:

August 10, 2021 in Recommended reading | Permalink | Comments (0)

Monday, August 9, 2021

Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges

Guest-Posting-ServiceI expressed concerns in this recent post about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges.  Upon seeing this Twitter thread by Prof. Jonah Gelbach about the work, I asked the good professor if he might turn his thread into a guest post. He obliged with this impressive essay:

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This post will comment on the preprint of The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants, by Christian Michael Smith, Nicholas Goldrosen, Maria-Veronica Ciocanel, Rebecca Santorella, Chad M. Topaz, and Shilad Sen.  Doug Berman blogged about it here, and I’m grateful to him for the opportunity to publish this post here.

As I explained in a Twitter thread over the weekend, I have serious concerns about the study.  The most important concerns I raised in that thread fall into the following categories:

  1. Incomplete data
  2. Endogeneity of included regressors
  3. Small numbers of observations per judge
  4. Use of most extreme judge-specific disparity estimates

I’ll take these in turn.

(1) Incomplete Data.  It’s complicated to explain the data, whose construction involve merging multiple large data sets.  In fact, a subset of the authors have a whole other paper about data construction.  In brief, the data are constructed by linking US Sentencing Commission data files to those in the Federal Judicial Center’s Integrated Data Base, which gives them enough to form docket numbers. They then use the Free Law Project’s Juriscraper tool (https://free.law/projects/juriscraper/) to query PACER, which yields dockets with attached judges’ initials for most cases that merged earlier in the authors’ pipeline.  The authors use those initials to identify the judge they believe handled sentencing, using public lists of judges by district.

As involved as the data construction is, my primary concern is simple: the share of cases included in the data set the authors use is very low.  For 2001-2018, there were 1.27 million sentences in USSC data and 1.46 million in FJC data (these figures come from the data-construction paper, which is why they apply to the 2001-2018 period rather than the 2006-2019 period used in the estimation of “Most Discriminatory” judges).  Of these records, the authors were able to match 860k sentences, of which they matched 809k to dockets via Juriscraper.  After using initials to match judges, they have 596k cases they think are matched.  That’s a match rate of less than 50% based on the USSC data and barely 40% based on the FJC data.  The authors can’t tell us much about the characteristics of missing cases, and it’s clear to me from reading the newer paper that the match rate varies substantially across districts.

I think this much alone is enough to make it irresponsible to report estimates that purport to measure individually named judges’ degrees of discrimination.  As a thought experiment, suppose that (i) the authors have half the data, and (ii) if they were able to include the other half of the data they would find that there was no meaningful judge-level variation in estimated racial disparities in sentencing.  By construction, that would render any discussion of the “Most Discriminatory” judges pointless.  Because the authors can’t explain why cases are missed, they have no way to rule out even such an extreme possibility.  Nor do they determine what share of cases they miss for any judge in the data, because they have no measure of the denominator (perhaps they could do this with Westlaw or similar searches for some individual judges).  Their approach to the issue of missing data is to simply assume that missing cases are missing at random:

“One unknown potential source of error is that we cannot determine what percentage of each judge’s cases were matched in the JUSTFAIR database. If this missingness is as-if random with respect to sentencing variables of interest, that should not bias our results, but we have little way of determining this.” (Pages 18-19, emphasis added.)

I believe it is irresponsible to name individual judges as “The Most Discriminatory” on the basis of data as incomplete as these.

(2) Endogeneity.  The authors include as controls in their model each defendant’s guideline-minimum sentence, variables accounting for the type of charge, & various defendant characteristics.  They argue that these variables are enough to deal not only with the enormous amount of missing data (with unknown selection mechanism; see above) but also any concerns that would arise even if all cases were available.  As Doug Berman previously noted here, if prosecutors offer plea deals of differing generosity to defendants of different races, then the guideline minimum doesn’t account for heterogeneity in cases.  And note that if that happens in general, it’s a problem for all the model’s estimates. In other words, even if the particular mechanism Doug hypothesized (sweet plea deals for Black defendants in the EDPA) doesn’t hold, the whole model is suspect if the guidelines variable is substantially endogenous.

There are other endogeneity concerns, e.g., the study includes as regressors variables that capture reasons why a sentence departed from the guidelines — an outcome that is itself partly a function of the sentence whose (transformed) value is on the left hand side of the model.  And as a friend suggested to me after I posted my Twitter thread, the listed charges are often the result of plea bargains, whose consummation can be expected to depend on the expected sentence.  So the guideline minimum variable, too, is potentially endogenous.

(3) Small numbers of observations per judge. The primary estimates on which the claim about particular judges’ putative discriminatory sentencing are based are what are known as random effect coefficients on race dummies.  It’s lengthy to explain all the machinery here, but I’ll take a crack at a simplified description.

The key model output on which the authors make their “Most Discriminatory” designations are judge-level estimated Black-White disparities (the same type of analysis applies for Hispanic-White disparity).  Very roughly speaking, you can think of the estimated disparity for Judge J as an average of two things: (i) the overall observed Black-White disparity across all judges — call this the “overall disparity”, and (ii) the average disparity in the subset of cases in which Judge J did the sentencing — call this the “judge-specific raw disparity”.

For example, suppose that over all defendants, the average (transformed) sentence is 9% longer among Black defendants than among White ones; then the overall disparity would be 9%.  Now suppose that among defendants assigned to Judge J, average sentences were 20% longer for Black than White defendants; then the judge-specific raw disparity would be 20%.

The judge-level estimated disparity that results from the kind of model the authors use is a weighted average of the overall disparity and the judge-specific raw disparity. So in our example, the estimated disparity for Judge J would be a weighted average of 9% (overall disparity) and 20% (judge-specific raw disparity).  What are the weights used to form this average?  They depend on the variance across judges in the true judge-specific disparity and the “residual” variance of individual sentences — the variance that is unassociated with factors that the model indicates help explain variation in sentences.

The greater the residual variance, the less weight will be put on the judge-specific raw disparity.  This is what’s known as the “shrinkage” property of mixed models — they shrink the weight placed on judge-specific raw disparities in order to reduce the noisiness of the model’s estimated disparity for each judge. (I noted this property in a follow-up tweet to part of my thread.)

However, all else equal, greater residual variance also means that variation in judge-specific raw disparities will be more driven by randomness in the composition of judges’ caseload. Because these raw disparities contribute to the model-estimated disparity, residual variance creates a luck-of-the-draw effect in the mode estimates: a judge who happens to have been assigned 40 Black defendants convicted of very serious offenses and 40 White defendants convicted of less serious ones will have a high raw disparity due to this luck factor, and that will be transmitted to the model’s estimate disparity.

How important this effect of residual variance is context-sensitive. The key relevant factors are likely to be the numbers of cases assigned to each judge for each racial group and the size of residual variance relative to the size of variance across judges in true judge-level disparities.

As I wrote in my Twitter thread, I used the authors’ posted code and data to determine that Hon. C. Darnell Jones II, the judge named by the authors as the “Most Discriminatory”, had a total of 103 cases with Black (non-Hispanic) defendants, 37 cases with Hispanic defendants, and 67 with White defendants. Hon. Timothy J. Savage, the judge named as the second “Most Discriminatory”, sentenced 155 Black (non-Hispanic) defendants included in the estimation, 58 Hispanic defendants, and 93 White defendants.  These don’t strike me as very large numbers of observations, which is another way of saying that I’m concerned residual variance may play a substantial role in driving the model-estimated disparities for these judges.

My replication of the authors’ model shows that true judge-specific disparities in the treatment of Blacks and Whites have an estimated variance of 0.055, whereas the estimated residual variance is nearly 30 times higher — 1.59 for a single defendant.  For a judge who sentenced 40 Black and 40 White defendants, this would mean that residual variance would be 2(1.59)/40~0.08 — which is larger than the 0.055 estimated variance in true judge-level disparity.  It’s more complicated to assess the pattern for judges with different numbers of defendants by race, but I would not be surprised if the residual variance component is roughly the same size as the variance in judge-level effects.

In other words, even given the effect of shrinkage, I suspect that “bad luck” in terms of the draw of defendants might well be quite important in driving the judge-specific estimates the authors provide. Even leaving aside the missing-data problem, I think that makes the authors’ choice to name individual judges as “Most Discriminatory” problematic.

Another issue is that the judge-specific estimated disparity (remember, this is the model’s output, formed by taking the weighted average of overall and judge-specific raw disparities) is itself only an estimate, and thus a random variable.  Thus if one picked a judge at random from the authors’ data, it would be inappropriate to assume that the estimated disparity for that judge was the true value. To compare the judge-specific estimated disparity to other judges’ estimated disparities, or to some absolute standard, would require one to take into account the randomness in estimated disparity.  The authors do not report any such estimates.  Nor does the replication code they posted along with their data indicate that they calculated standard errors of the judge-specific estimated disparities.  There is no indication that I can find in either the code or the paper that they investigated this issue before posting their preprint.

(4) The many-draws problem.  Consider a simple coin toss experiment.  We take a fair coin and flip it 150 times. Roughly 98% of the time, this experiment will yield a heads share of 41.6% or greater (in other words, 41.6% is the approximate 2nd percentile for a fair coin flipped 150 times).  So if we flipped a fair coin once, it would be quite surprising to observe a heads share of 41.6% or lower.  But now imagine we take 760 fair coins and flip each of them 150 times. Common sense suggests it would be a lot less surprising to observe some really low heads shares, because we’re repeating the experiment many times.

To illustrate this point, I used a computer to do a simulation of exactly the just-described experiment — 760 fair coins each flipped 150 times. In this single meta-experiment I found that there were 13 “coins” with heads shares of less than 41.6%, just under two percent of the 760 “coins”, roughly as expected.  Given that we know all 760 “coins” are fair, it would make no sense to say that “the most biased coin is coin number 561”, even though in my meta-experiment it had the lowest heads share (36.7%, more than 3 standard deviations below the mean).  We know the coin is fair; it’s just that we did 760 multi-toss experiments, and with that much randomness we’re going to see some things that would be very unlikely with only one experiment.

Leaving aside differences across judges in the number of cases heard, this is not that different from what the authors’ approach entails.  If all judges had the same number of sentences, then they’d all have the same weights on their raw disparities, and so differences across judges would be entirely due to variation in those raw disparities.  If the residual variance component of these raw disparities is substantial (see above), then computing judge-specific model-estimated disparities for each of 760 judges would involve an important component related to idiosyncratic variation.  Taking the most extreme out of 760 model-estimated disparities is a lot like focusing on “coin” number 561 in my illustrative experiment above.

Another way to say this is that even if there were zero judge-specific disparity — even if all judges were perfectly fair — we might not be surprised to see substantial variation in the authors’ model-estimated disparities.

Now, it’s not really the case that all judges gave the same number of sentences, so there’s definitely some heterogeneity due to shrinkage as discussed above, which complicates the simpler picture I just painted for illustrative purposes.  But I suspect there is still a nontrivial “many-tosses problem” here.  Note that this is really an instance of a problem sometimes referred to as “multiple testing” in various statistics literatures; as responders to my Twitter thread noted, one place it comes up is in attempts to measure teachers’ value added in education research, and another is in ranking hospitals and/or physicians.  In other words, this isn’t a problem I’ve made up or newly discovered.

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In sum, I think the paper has several serious problems.  I do not think anyone should use its reported findings as a basis for deciding which judges are discriminatory, or how much.  This is as true for people who lack confidence in the fairness of the system as for any people who doubt there is discrimination.  In other words, the criticisms I offer do not require one to believe federal criminal sentencing is pure and fair.  These criticisms are about the quality of the data and the analysis.

I want to make one final point, as I did in my Twitter thread.  Like the authors of the study, I believe that PACER should be made available to researchers.  Indeed, I recently have written a whole paper taking that position.  But I am very concerned about the impact of their work on that prospect.  The work involves problematic methods and choices and then calls out individual judges for shaming.  In my experience there’s nontrivial opposition to data openness within the federal judiciary, and I fear this paper will only harden it.

August 9, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (14)

Is it problematic for sentencing judges to require the COVID vaccine as a probation condition?

The question in the title of this post is prompted by this new New York Times article headlined "Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases." Here are excerpts:

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday. “I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates. The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”...

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections. “Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine. “Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded....

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.” He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”

August 9, 2021 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

Tale of two sentencings highlights disparity and need for for better data

This lengthy new article from Cleveland.com spotlights a local example of sentencing disparity and highlights how this tale contributes to calls for statewide data-focused reforms.  The headline of the article provides a preview: "White woman who stole $250K gets probation, while Black woman who stole $40K goes to jail.  Disparate sentences spark calls for reform."  Here is how the article gets started:

Two Cuyahoga County Common Pleas Court judges doled out disparate sentences this week to women who stole public money in separate cases, reigniting calls to create a statewide sentencing database to ensure judges mete out fair punishments.

A white woman stole nearly $250,000 from the village of Chagrin Falls.  Judge Hollie Gallagher sentenced her on Monday to two years of probation.  A Black woman who stole $40,000 from Maple Heights City Schools went before Judge Rick Bell, who sentenced her Tuesday to 18 months in prison.

Leaders of Black faith organizations, labor organizations, current and former judges and social activist groups all told cleveland.com and The Plain Dealer that the stark difference between the sentences damaged the credibility of the criminal justice system and reinforced the sentiment that judges disproportionately punish people of color or those without means.

All of the leaders called on Cuyahoga County’s judges and judges around the state to join an Ohio Supreme Court pilot project that would create a public database to make transparent how judges sentence defendants and provide guardrails on judicial discretion that often results in unequal justice.  Only 10 of Cuyahoga County Common Pleas Court’s 34 judges have said they plan to sign on to the program. Six of those judges are in their first term on the bench.

“It’s kind of hard to figure how you can end up with results that are so different for similar kinds of actions,” former longtime Cleveland Municipal Court Judge Ronald Adrine said.  “Cases like these point out the need for the system to do a better job of reviewing the data because there’s lots of disparity between the way that people of color and white people are treated. But it doesn’t get captured because nobody’s really looking.”

Ohio Supreme Court Justice Michael Donnelly, who spent 14 years on the Cuyahoga County Common Pleas bench before ascending to the state’s highest court in 2019, and 8th District Court of Appeals Judge Sean Gallagher said the adoption of the database would move the state closer to identifying and correcting issues that contribute to disparities in sentencing.  “Are we satisfied with a system that would allow for two extremely different results like this?” Donnelly asked.  “Is that good policy? Does it make the community more safe, when our sentencing laws allow for that disparity? We need to ask that question in Ohio.”

Both judges said that, while judicial discretion is important, the reaction to this week’s differing sentences shows the state needs to do more to ensure that judges punish people who commit similar crimes more equally.  “If there isn’t faith in the justice system that you’re going to get a fair shake, then that’s the biggest indictment against keeping the things the way they are,” Gallagher said.

A few prior related posts:

August 9, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, August 8, 2021

Part 2 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20224df387165200bIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the second of the set.

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In a previous blog post on my new book Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I made the case for using risk assessments instruments (RAIs) in the pretrial and post-conviction process as a means of reducing incarceration through providing more accurate and cost-effective assessments of the risk of reoffending.  But not all risk assessment instruments are created equal.  Although algorithms, on average, are superior to unstructured judgment when it comes to prediction, many are seriously defective in a number of respects.  A major goal of my book is to provide a set of principles meant to govern the development of these instruments and to guide judges and other criminal justice actors in determining which measures to use and for what purposes.  Influenced by insights gleaned from the algorithms themselves, it advances, in short, a much-needed “jurisprudence of risk” analogous to the jurisprudence of criminal liability that has long governed the definition of crimes and the scope of punishment.

The first part of the book’s title points to one important aspect of this jurisprudence.  If the recommendations in this book are followed, the usual approach taken by legal decision-makers — which is to treat the algorithmic forecast as simply one factor relevant to risk assessment — would generally be impermissible.  “Adjusting” the results of a well-validated RAI, based on instincts and experience, defeats the purpose of using an RAI, especially when the decision-makers’ intuition about risk is based on factors that have already been considered in the tool.  Incorporating human judgment into the risk assessment will usually make matters worse when the RAI meets the basic requirements outlined in this book.  This notion is one meaning — the literal one — of “Just Algorithms.”

The second meaning of that title is even more important.  Properly cabined, predictive algorithms can be just.  Numerous writers have argued to the contrary, pointing in particular to racial disparities among those who are identified as high risk.  But even if such disparities do exist, they do not necessarily make risk algorithms unjust.  This book takes the position that the fairest approach to evaluating risk is to treat people who are of equal risk equally.  The primary goal of an RAI should be to identify accurately those who are high risk and those who are low risk, regardless of color, even if that means that a greater percentage of people of color are identified as high risk.  At the same time, it must be recognized that assessments of risk may be inaccurate if the influence of racialized policing and prosecutorial practices on the validity of assessment instruments is not taken into account.

Another, related complaint about predictive algorithms — one that has special salience at sentencing and other post-conviction settings — is that punishment should never be based on conduct that has not yet occurred, both given the uncertainty of prediction and its insult to human dignity and autonomy.  The point this book makes on this score is, again, a comparative one.  The primary competitor to sentencing that considers risk is a purely retributive system — one that relies solely on backward-looking assessments of criminal conduct and the mental states that accompany it.  But such a system is rife with speculative claims about just desert, and can be remarkably inattentive to the impact of mitigating human foibles.  Properly regulated algorithmic risk assessments, in contrast, can differentiate high and low risk offenders at least as reliably as judges and juries can calibrate culpability, and can do so without abandoning condemnation based on blame, especially if sentences ranges are still based on retributive principles.  The needs part of theassessment can also facilitate the identification of autonomy-affirming and dignity-enhancing treatment programs that help offenders help themselves.

To realize the full potential of RAIs in the sentencing setting, however, the current fixation on determinate sentencing needs to be rethought.  That is the subject of my third and final blog, soon to come.

Prior related post:

August 8, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Highlighting the importance of data to ensure equity in diversion efforts

Regular readers are probably used to hearing me stress the importance of data in various aspects of our criminal justice systems, and so I was pleased to see this new Law360 piece headlined "Data Collection Is Crucial For Equity In Diversion Programs." I recommend the lengthy piece in full, and here is how it starts:

Prosecutorial diversion programs are intended to create equity in the criminal justice system by stopping the incarceration of people who have mental health and substance abuse problems, but without proper data collection, prosecutors can't ensure equity in these programs, experts say.

The Prosecutorial Performance Indicators project, an initiative led by researchers at the Florida International University and Loyola University of Chicago to help prosecutors collect data to improve their methods, recently released a report that looked at racial disparities in the number of people who had their cases diverted from criminal courts to diversion programs, like mental health or drug courts.

According to the report that compared the race and ethnicity of people placed in diversion programs in four prosecutors' offices in Chicago, Jacksonville, Milwaukee and Tampa, even though overall more Black defendants than white were placed in diversion programs in three of the four cities, more white defendants than Black defendants had their felony cases placed in diversion programs in all of the cities.

With this data, prosecutors in these offices can use it to guide their policies and prosecutorial decisions, according to Melba Pearson, director of policy and programs at FIU's Center for Administration of Justice and a PPI co-manager. "While diversion is a great tool, we have to make sure that it's applied equitably, so that includes looking at factors like cost, accessibility [and] how offers are being delivered," Pearson told Law360.

In Jacksonville, the data shows that, from 2017 through 2019, the number of Black defendants that had their misdemeanor cases diverted from prosecution grew because its prosecutor's office implemented a program that gives people charged with misdemeanor traffic violations an opportunity to have their charges dropped.

The full report referenced in this article, which is titled "Race and Prosecutorial Diversion: What we know and what can be done," is available at this link.

August 8, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Might Alabama become the first state to use nitrogen gas for an execution?

The question in the title of this post is prompted by this new AP article headlined "Alabama says it has built method for nitrogen gas execution."  Here are excerpts:

Alabama told a federal judge this week that it has finished construction of a “system” to use nitrogen gas to carry out death sentences, an execution method authorized by state law but never put into use.

The Alabama Department of Corrections indicated in an Aug. 2 court filing that it is waiting to make sure the nitrogen hypoxia system is ready, before writing procedures for how it will be used. The prison system did not describe how the system would work or give an estimate on when the state may try to use the new execution method.

“The ADOC has completed the initial physical build on the nitrogen hypoxia system. A safety expert has made a site visit to evaluate the system. As a result of the visit, the ADOC is considering additional health and safety measures,” a lawyer for the state attorney general’s office wrote in the court filing.

Alabama in 2018 became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. Death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of oxygen. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

No state has used nitrogen hypoxia to carry out an execution, and no state has developed a protocol for its use, according to the Death Penalty Information Center.... Alabama currently carries out executions by lethal injections unless an inmate requests the electric chair. As lethal injection drugs become difficult to obtain, states have begun looking at alternative ideas for carrying out death sentences including firing squads and gas.

A few (of many) prior related posts:

August 8, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Saturday, August 7, 2021

A couple of accounts of the persistent and problematic challenges of reentry

In recent days, I have seen a couple of notable new accounts of the trip wires that we have created for persons seeking to reenter the community after prison.  Here are links to the stories and excerpts:

From Daily Beast, "Pot Prisoner Sentenced to Life Before Trump Pardon Is Back in Custody":

In 2010, a federal judge sentenced Tony DeJohn to life plus 10 years on a nonviolent marijuana charge. Because it was DeJohn’s third conviction, the judge was required by law to impose the maximum penalty available. He was just 31 years old.

Eleven years later, DeJohn, who is from Upstate New York but had been locked up in high-security facilities in Pennsylvania, Kentucky, and Colorado, was granted clemency by then-President Donald Trump. He was released from prison on January 20, 2021.

But today, DeJohn is back in federal custody. The now 47-year-old will be spending the next six months in a Pennsylvania halfway house, according to court filings reviewed by The Daily Beast—but not because he broke any new laws.

From the REFORM Alliance, via TWitter:

Daniel B., a father of four from Nebraska, wants to be able to go to his daughter’s softball games, advance in his career, and provide for his family.  But the strict rules of Federal Supervised Release make it difficult for him to succeed as a parent.

Since being released from prison, Daniel obtained a job, married, & became a minister.  He is also serving 10 years of Supervised Release, where the threat of technical violations — like missing curfew, traveling w/o permission, or losing his job—could send him back to prison.

Daniel isn’t alone.  We have far too many people on Federal Supervision, serving terms that are too long. The system is wasteful and even counterproductive to public safety.  Too often, Federal Supervision acts like a trap door to prison instead of a springboard to success.

UPDATE: One more on this topic from this NC Policy Watch blog post titled "Leaving prison? NC’s mind-boggling bureaucracy stands between you, a state-issued ID, and quite possibly your future." Here is an excerpt:

One of the most pervasive challenges for people returning home from incarceration is also one of the least discussed: state-issued ID cards....

Over 22,000 North Carolinians are released from incarceration each year. Thousands of them find themselves unable to acquire a state-issued ID. The process is so convoluted for the re-entry population that it is nearly impossible for many returning residents. Even if these folks returning home do everything right, the path to freedom, to independence, has been so narrowly circumscribed by state bureaucracy that whether someone succeeds or fails is as much a matter of luck as it is of diligence and perseverance.

Yet, officials with the power to streamline this process, to make it at least fair, continue to drag their feet on this issue. For years, advocates and reentry providers have asked the Department of Public Safety and NC Division of Motor Vehicles to collaborate on addressing this issue. Unfortunately, little has come from the process except unsuccessful efforts and more excuses.

August 7, 2021 in Reentry and community supervision | Permalink | Comments (4)

Friday, August 6, 2021

Rounding up some recent reads as another summer week winds down

I am already getting that summer-winding-down feeling, and so I am trying to savor every week of my favorite season.  Part of summer savoring means not always finding time to blog about every notable story and commentary I see, and here are just a few from this week that seemed worth flagging:

From BuzzFeed News, "The Biden Administration Is Rejecting 'The War On Drugs' And Turning To 'Harm Reduction'"

From The Conversation, "Pandemic pushed defendants to plead guilty more often, including innocent people pleading to crimes they didn’t commit"

From The Crime Report, "Cops on the Campaign Trail: A New Force in US Politics?"

From Reason, "The Government Says These Missouri Men Are Innocent. It Won't Release Them From Prison."

From the New York Times, "If You Paid Your Debt to Society, You Should Be Allowed to Work"

From the Washington Post, "If Biden abolishes the federal death penalty, he’ll have more support than you think"

August 6, 2021 in Recommended reading | Permalink | Comments (2)

Thursday, August 5, 2021

Prof Slobogin discussing Just Algorithms in guest posts

6a00d83451574769e20224df387165200bIn this recent post, I flagged a notable new forthcoming book authored by Christopher Slobogin.  I asked Prof Slobogin if he might be interested in sharing some key ideas from this important book in a set of guest posts. He kindly agrees, and here is the first of the set.

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Doug has graciously invited me to blog about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press). There follows the first of three excerpts extracted from the Preface (the next two coming soon):

Virtually every state has authorized the use of algorithms that purport to determine the recidivism risk posed by people who have been charged or convicted of crime. Commonly called risk assessment instruments, or RAIs, these algorithms help judges figure out whether individuals who have been arrested should be released pending trial and whether a convicted offender should receive prison time or an enhanced sentence; they assist parole boards in determining whether to release a prisoner; and they aid correctional officials in deciding how offenders should be handled in prison.  Most of these algorithms consist of from five to 15 risk factors associated with criminal history, age, and diagnosis, although an increasing number incorporate other demographic traits and psychological factors as well. Each of these risk factors correlates with a certain number of points that are usually added to compute a person’s risk score; the higher the score, the higher the risk.  Some tools may also aim at identifying needs, such as substance abuse treatment and vocational training, thought to be relevant to rehabilitative interventions that might reduce recidivism. This book will provide examples of a number of these instruments so that the reader can get a sense of their diversity and nuances.

One purpose of this book is to explain how risk algorithms might improve the criminal justice system.  If developed and used properly, RAIs can become a major tool of reform. They can help reduce the use of pretrial detention and prison and the length of prison sentences, without appreciably increasing, and perhaps even decreasing, the peril to the public (goals that are particularly pressing as COVID-19 ravages our penal facilities).  They can mitigate the excessively punitive bail and sentencing regimes that currently exist in most states. They can allocate correctional resources more efficiently and consistently.  And they can provide the springboard for evidence-based rehabilitative programs aimed at reducing recidivism. More broadly, by making criminal justice decision-making more transparent, these tools could force long overdue reexamination of the purposes of the criminal justice system and of the outcomes it should be trying to achieve.

Despite their potential advantages, the risk algorithms used in the criminal justice system today are highly controversial.  A common claim is that they are not good at what they purport to do, which is to identify who will offend and who will not, who will be responsive to rehabilitative efforts and who will not be.  But the tools are also maligned as racially biased, dehumanizing, and, for good measure, antithetical to the foundational principles of criminal justice.  A sampling of recent article and book titles makes the point: “Impoverished Algorithms: Misguided Governments, Flawed Technologies, and Social Control,” “Risk as a Proxy for Race: The Dangers of Risk Assessment,” “Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor.” In 2019, over 110 civil rights groups signed a statement calling for an end to pretrial risk assessment instruments.  That same year 27 Ivy League and MIT academics stated that “technical problems” with risk assessment instruments “cannot be resolved.”  And in 2020 another group of 2323 scholars from a wide range of disciplines “demanded” that Springer publishing company, one of the largest purveyors of healthcare and behavioral science books and journals, “issue a statement condemning the use of criminal justice statistics to predict criminality” because of their unscientific nature.

A second purpose of this book is to explore these claims.  All of them have some basis in fact.  But they can easily be overblown.  And if the impact of these criticisms is to prevent the criminal justice system from using algorithms, a potentially valuable means of reform will be lost.  A key argument in favor of algorithms is comparative in nature.  While algorithms can be associated with a number of problems, alternative predictive techniques may well be much worse in each of these respects.  Unstructured decision-making by judges, parole officers, and mental health professionals is notoriously bad, biased and reflexive, and often relies on stereotypes and generalizations that ignore the goals of the system. Algorithms can do better, at least if subject to certain constraints. .

In blogs to come I describe these constraints, and how RAIs can be integrated into the criminal justice system.

August 5, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)