Thursday, October 8, 2020

"A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis"

The title of this post is the title of this paper recently posted to SSRN authored by Emily O'Brien. Here is its abstract:

Wisconsin’s drug-induced homicide law, known as the Len Bias law, was intended to prosecute for-profit drug dealers and was rarely charged for several decades after it was enacted in 1986.  In recent years, prosecutors have brought hundreds of Len Bias charges in response to opioid deaths.  Often, these charges are brought against overdose victims’ friends and family members — people who are also mired in addiction and who shared or helped obtain the fatal drug.  In contrast, Wisconsin’s Good Samaritan overdose law (GSOL), enacted in 2014, focuses on harm reduction.  If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges.  These laws approach the problem of overdose death from very different angles: The Len Bias law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution in order to encourage calls for medical intervention in overdose situations.  Unfortunately, the current implementation of the Len Bias law diminishes the potential of GSOL to save lives because addicts are faced the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices in order to reduce overdose deaths.  The criminalization of addiction represented by the Len Bias law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases.  This Comment proposes a solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in Len Bias cases. Addicts are more likely to use opioids with other addicts than alone.  By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows the Len Bias law to be charged in accordance with its intended purpose, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade.  This proposed solution would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.

October 8, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Federal prison population hits new modern law at 155,197 according to BOP reporting

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  Roughly a month ago, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483; but then, as noted here, the BOP reported federal prison population ticked up a few hundred persons the following week for first time in COVID era.

Today, checking the new BOP numbers at this webpage report "Total Federal Inmates" shows seemingly a new modern population low at 155,197.  So, though it seems weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it is possible we have not yet hit "the bottom" as to COVID era federal prison population declines.   

I have wondered repeatedly in these posts whether COVID-delayed sentencings or stalled federal prison transfers or any number of other factors may largely account for these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these weekly reported population numbers represent.  I remain hopeful that we may eventually get some timely sentencing data from the USSC, but I am not optimistic it will ever be easy to fully understand and account for all the ways the the federal criminal process and prison populations have been impacted by and are adjusting to the COVID era.

A few of many prior related posts:

October 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 7, 2020

Documenting the (unsurprising) lack of compassion from federal prison officials when considering COVID-era compassionate release requests

The Marshall Project has this lengthy new piece reporting on an old story, namely the utter failure of federal prison officials to discharge effectively their "compassionate release" responsibilities by helping to identify prisoners who ought to have their prison sentences reduced due to serious illness or other compelling factors.  The full piece is worth a full read; it is fully headlined: "Thousands of Sick Federal Prisoners Sought Compassionate Release.  98 Percent Were Denied.  Wardens blocked bids for freedom as COVID-19 spread behind bars, data shows."  Here are a few excerpts, with commentary to follow:

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba.  Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge.  Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic....

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156.  Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all.  Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11.  Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of COVID-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

At Elkton, an early hot spot in Ohio where nine prisoners died of COVID-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.  At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping.  For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.  Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May.  All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.  “The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all.  This has to be an undercount because of the informal nature of the process.”

I am very pleased to see the Marshall Project seek to marshal this data, and I would have been shocked if the data showed anything else about how federal prison officials responded to compassionate release requests.  Congress through the FIRST STEP Act wisely altered the process for these requests to authorize prisoners to directly motion courts for a sentence reduction (often called "compassionate release") because federal prison officials had so badly failed for decades to effectively discharge their "compassionate release" responsibilities.   In the past, many hundreds of inmates had died before prison officials would even respond to requests, and Congress should be widely praises for its wise decision to now allow prisoners to motion courts directly after first making the request to prison officials.

That said, the challenges of collecting these data and keeping them updated serves as a reminder that the FIRST STEP Act did not fix everything.  As long known by those involved in this system, the federal BOP still needs to be subject to considerably more independent oversight and reporting requirements.  BOP's overall lack of accountability and transparency was bad enough in normal times, especially since the BOP has been the nation's largest incarcerator for the better part of two decades.  In the COVID era, the federal prisons bureau should be doing a whole lot better and that really seem to now require significant structural change.

That all said, any doom and gloom about federal prison officials can and should be tempered by the broader success stories in the arena of sentence reductions (often called "compassionate release") under 3582(c), and this overall success is usefully documented in real time by the BOP.  Though the BOP does not discuss motions denied of any particulars, the BOP does helpfully report at this FSA page the total number of granted post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  As of this writing, that number stands at 1752 (and is up over 250 in just the last month since I blogged on this topic here). 

As detailed in this post, the US Sentencing Commission has reported that in the year before FIRST STEP only 24 persons got their sentenced reduced; in the year after FIRST STEP became law, that number of sentence reductions rose to 145.  Doing the math, this all means that in the COVID era there have already been over 1600 sentence reduction motions granted (meaning roughly 80 times as many as pre-FIRST STEP and 11 times as many as post FIRST STEP/Pre-COVID)!  

A few of many prior related posts:

October 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Should we be rooting for or against some criminal justice discussions during the VP debate?

The question in this title of this post is my sincere question as I think about tonight's scheduled debate between the 2020 vice presidential candidates, current VP Mike Pence and Senator Kamala Harris.  Especially after the many ugly dimensions of last week's Prez election debate, I find myself wondering too much about whether we can even have effective civil discourse in this nation.  That depressing fundamental concern aside, it is perhaps worth recalling that almost exactly four years ago at the last VP debate, then-Gov Pence advocated for national criminal reform in this exchange (as reported in my Oct 2016 blog posting with my emphasis added):

[Moderator] QUIJANO:  Your fellow Republican, Governor Pence, Senator Tim Scott, who is African-American, recently spoke on the Senate floor.  He said he was stopped seven times by law enforcement in one year....  He said, "I have felt the anger, the frustration, the sadness, and the humiliation that comes with feeling like you're being targeted for nothing more than being just yourself."  What would you say to Senator Scott about his experiences?

PENCE:  Well, I have the deepest respect for Senator Scott, and he's a close friend.  And what I would say is that we — we need to adopt criminal justice reform nationally.  I — I signed criminal justice reform in the state of Indiana, Senator, and we're very proud of it.  I worked when I was Congress on a second chance act.  We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice.

I would love a four-years-later follow up question to now-VP Pence that explores whether he thinks the Trump Administration has been doing "a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice."  That said, if there are questions focused on criminal justice issues in this VP debate, we might expect that they may be first directed toward Senator Harris given her long (and somewhat controversial) record on these issues resulting in part from her service as a local prosecutor and then Attorney General in California.

In this post some weeks ago, I made a pitch for an entire Prez debate focused on criminal justice issues.  Now I am finding myself just hoping for a debate that does not make me sick. The question in the title of this post is driven by the fact that I am sincerely not sure if the candidates ignoring or discussing these issues tonight are more or less likely to be nauseating.

A few prior recent related posts:

October 7, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Notable perspectives from the Prairie State on "Principles to Build a More Equitable Criminal Justice System"

I just noticed, and found quite notable, this new press release from yesterday coming from the Illinois Governor's office.  The document is fully titled "Gov. Pritzker Proposes Principles to Build a More Equitable Criminal Justice System: Criminal Justice Reform Principles Aim to Modernize Criminal Code, End Cycles of Recidivism, and Increase Police Accountability."  I'd recommend the lengthy document in full, and here is the statement of "seven principles for an equitable criminal justice system" that are at the heart of the document (with bolding in the original):

The seven principles for an equitable criminal justice system are the following:

• End the use of the cash bail system and limit pretrial detention to only those who are a threat to public safety. The governor remains committed to ending a system that disproportionately forces low-income families and people of color into a disruptive cycle of unearned detention and instability.  The cash bail system would be replaced by a risk assessment to determine the likelihood of a defendant's appearance at trial and if there is a threat to public safety posed by a defendant's pre-trial release.
 
• Modernize sentencing laws on theft and drug offenses and use a public health approach to address mental health and addiction. Illinois will decrease unnecessary admissions into prison, match modernized sentencing standards across the country, and limit criminal justice system involvement for non-violent offenders who need and would benefit from a public health intervention. 
 
• Reduce excessive lengths of stay in prison by providing pathways for people to earn opportunities for rehabilitation. The state will increase access to sentence credit and time-limited supervised release while limiting penalty enhancements and short-term commitments that disproportionately trap low-income families and people of color in generational cycles of incarceration.
 
• Prioritize rehabilitation and reduce the risk of recidivism by increasing access to housing and healthcare for returning residents.  The state is committed to expanding opportunities, supports, and services for people who are exiting the prison system so that they are set up to succeed upon return to their communities, and which will save taxpayers money by reducing the number of people trapped in a cycle of recidivism. 
 
• Increase police accountability and transparency for police officers and police departments. Illinois will set the standard for the nation in professionalizing and setting statewide standards for police officers.  We will advocate for licensing of police officers, strengthen the role of the State Police Merit Board, work alongside police departments to ensure compliance and proper use of body-worn cameras, create a state-level avenue to investigate systemic police misconduct, and remove barriers for civilians to report officer misconduct, like the signed affidavit requirement.
 
• Update and strengthen statewide standards for use of force by police officers. Illinois is committed to modernizing the legal standard for use of force and implementing common sense policies and trainings that are consistent with best practices and will improve police-community relations.  This includes requiring police officers to apply first aid after using force, prohibiting no-knock search warrants, requiring the use of de-escalation techniques, and requiring officers  to intervene and report when excessive force is used by another officer. 
 
• Improve interactions with police by decriminalizing minor non-violent offenses, improving police response to crowd control, and increasing language and disability access.  By decriminalizing minor non-violent offenses, creating policies and trainings for police response to non-violent crimes and protests, and increasing language and disability access for civilians, Illinois will establish a framework to improve community safety and trust.  

October 7, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, October 6, 2020

Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence

As reported in this Boston Globe piece, "Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev." Here is more (links from the original):

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

First, it asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

Second, the document asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”...

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection....

With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.  Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado. 

Prior recent related posts:

October 6, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

New AP report details lack of diversity in Trump Administration's picks for US Attorneys

The role and significance of prosecutors has become an area of growing interest and analysis among criminal justice scholars and advocates.  So this new AP piece, headlined "Trump’s top federal prosecutors are overwhelmingly white men," should be of interest for many reasons and to many people.  Here are a few excerpts:

The nation’s top federal prosecutors have become less diverse under President Donald Trump than under his three predecessors, leaving white men overwhelmingly in charge at a time of national demonstrations over racial inequality and the fairness of the criminal justice system.

The Associated Press analyzed government data from nearly three decades and found that a persistent lack of diversity in the ranks of U.S. attorneys has reached a nadir in the Trump administration.  Eighty-five percent of his Senate-confirmed U.S attorneys are white men, according to AP’s analysis, compared with 58% in Democratic President Barack Obama’s eight years, 73% during Republican George W. Bush’s two terms and at most 63% under Democrat Bill Clinton.

White men lead 79 of the 93 U.S. attorney’s offices in a country where they make up less than a third of the population. Nine current U.S. attorneys are women.  Two are Black, and two Hispanic....

The enduring imbalance leaves U.S. attorneys looking less like the people they serve, and is in stark contrast to the population of federal prisons, where a disproportionate share of those incarcerated are Black....

White House spokesman Judd Deere did not answer questions about the diversity of U.S. attorneys under Trump’s watch, but said in a statement that the administration has “worked closely with U.S. Senators to identify the best candidates to serve as the chief law enforcement officer in their districts back home, and we are very proud of the work that they are doing to keep all Americans safe.”...

A lack of diversity has long been an issue throughout the federal law enforcement and criminal justice systems.  In some places it’s grown more acute under Trump.  Then-FBI Director James Comey said in 2016 that the bureau’s failure to recruit more minorities had become “a crisis.” In the U.S. Drug Enforcement Administration, recent court filings show 8% of the agency’s more than 4,000 special agents are Black while about 77% are white.

An AP analysis also found nearly 86% of the 206 federal judges confirmed to lifetime positions under Trump have been white — the highest rate of white judicial appointments since George H.W. Bush’s presidency.  Two-thirds of Trump’s judicial appointees have been white men; fewer than a quarter have been women.

And at the top of the Justice Department, Trump’s two attorneys general — Barr and Sessions — are also white.  That compares with the past three administrations in which Black people, a Latino man and the first female attorney general served as the nation’s top law officer.

October 6, 2020 in Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Collateral Consequences Resource Center releases "The Reintegration Report Card"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this detailed report's introduction:

This Report Card supplements our recently published 50-state report, “The Many Roads to Reintegration,” a survey of U.S. laws aimed at restoring rights and opportunities after arrest or conviction.  That report includes topical essays covering voting and firearms rights, an array of record relief remedies, and consideration of criminal record in employment and occupational licensing.

The “Many Roads” report assigned to each state, D.C., and the federal system a grade for nine different types of restoration laws:

  1. loss and restoration of voting rights
  2. pardon
  3. felony expungement, sealing & set-aside (“felony relief”)
  4. misdemeanor expungement, sealing & set-aside (“misdemeanor relief”)
  5. non-conviction relief
  6. deferred adjudication
  7. judicial certificates of relief
  8. employment
  9. occupational licensing.

Using these grades, we produced an overall ranking of the states and D.C. In this Report Card we provide the grades and rankings in an easily digestible form.

We also provide a brief narrative summary of how each state’s law stacks up in the different categories.  Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its ranking. An appendix collects all the grades and rankings.

Finally, we emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries.  We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them.  In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

For more details and legal citations for each state, see the Restoration of Rights Project.  For essays surveying each topic, consult “The Many Roads to Reintegration.”

October 6, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 5, 2020

"Remote Criminal Justice"

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

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay.  The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over.  To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020.  The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.

The survey responses paint a complicated picture.  They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public.  Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials.  These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely.  Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients.  Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.

Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice.  It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over.  Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations.  Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings.  If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

October 5, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

I am going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  Here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 5, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

"Decarceration and community re-entry in the COVID-19 era"

The title of this post is the title of this new piece by multiple authors published in The Lancet Infectious Diseases.  Here is its "Summary":

Jails and prisons are exceptionally susceptible to viral outbreaks, such as severe acute respiratory syndrome coronavirus 2.  The USA has extremely high rates of incarceration and COVID-19 is causing an urgent health crisis in correctional facilities and detention centres.  Epidemics happening in prisons are compounding the elevated risks that COVID-19 poses to people of colour, older people, and those with comorbidities.  Intersectoral community re-entry efforts in the USA and other countries have shown that releasing people from correctional facilities as a pandemic-era public health intervention is safe and can support both public safety and community rebuilding.  Therefore, substantial decarceration in the USA should be initiated.  A point of focus for such efforts is that many people in prison are serving excessively long sentences and pose acceptable safety risks for release.  Properly managed, correctional depopulation will prevent considerable COVID-19 morbidity and mortality and reduce prevailing socioeconomic and health inequities.

October 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Justice Sotomayor issues a couple of notable (and notably solo) statements in lengthy order list kicking off new SCOTUS Term

For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices.  That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual.  In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week.  I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.

That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list.  After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied.  But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari

In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur.  For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....

Prosecutors wield an immense amount of power, and they do so in the name of the State itself.  That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice.  Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense.  Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.  Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:

I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging....  The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....

The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering.  Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.  See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878.  Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.”  Bucklew, 587 U. S., at ___ (slip op., at 13).  If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....

Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.

UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari."  Even so styled, she notably did not get any other Justice to sign on.

October 5, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, October 4, 2020

Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

20201004T0600-POPE-ENCYCLICAL-1006436_vertAs reported in this new article from America, which is headlined "Pope Francis closes the door on the death penalty in ‘Fratelli Tutti’," there are new papal teachings that have much to say about extreme punishments.  Here are the details:

Pope Francis’ new encyclical, “Fratelli Tutti,” does something that some Catholics believed could not be done: It ratifies a change in church teaching. In this case, on the death penalty.

In 2018, Pope Francis ordered a change in the Catechism of the Catholic Church, the official compendium of church teaching, when he termed the death penalty “inadmissible.”  Today the pope placed the full weight of his teaching authority behind this statement: The death penalty is inadmissible, and Catholics should work for its abolition.  A papal encyclical is one of the highest of all documents in terms of its authority, removing any lingering doubt about the church’s belief.

“There can be no stepping back from this position,” says Francis, referring to the opposition to capital punishment expressed by St. John Paul II. “Today we state clearly that ‘the death penalty is inadmissible’ and the Church is firmly committed to calling for its abolition worldwide.”...

In past centuries, the church was generally accepting of the death penalty. Both St. Augustine and St. Thomas Aquinas declared it licit not only for the sake of punishment, but also as a way for the state to protect itself, ideas that took hold in the church and influenced civil society. In the Roman Catechism, written after the Council of Trent in the 16th century, the church supported the death penalty for those two reasons: “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent.”

As recently as the 1990s, the Catechism of the Catholic Church said that the state could still use capital punishment to protect people from violent criminals: “The traditional teaching of the Church does not exclude, presupposing full ascertainment of the identity and responsibility of the offender, recourse to the death penalty, when this is the only practicable way to defend the lives of human beings effectively against the aggressor.”

In 1995, however, in his encyclical "Evangelium Vitae," St. John Paul II tightened the restrictions, saying that the times that the state needed to use capital punishment to protect other citizens were “very rare, if not practically non-existent.” Four years later, he called for its abolition. So did Pope Benedict XVI, in 2011. The door to the death penalty was gradually closing. Today it was shut. It is a clear example of the development of doctrine over the centuries.

In his new encyclical, Francis also traces a lesser known counternarrative, showing a theological thread that has always been against the death penalty: “From the earliest centuries of the Church, some were clearly opposed to capital punishment,” he writes and includes commentary from St. Augustine, who argued for mercy in the case of two assassins.

In “Fratelli Tutti,” the pope grounds his opposition to capital punishment not only in mercy, perhaps his most characteristic spiritual theme, but also in opposition to revenge. “Fear and resentment can easily lead to viewing punishment in a vindictive and even cruel way, rather than as part of a process of healing and reintegration into society,” he writes.

Moreover, he bases the teaching in the inviolable dignity of each person—including the person on death row. “Let us keep in mind that ‘not even a murderer loses his personal dignity, and God himself pledges to guarantee this,’” he says, quoting “The Gospel of Life” (“Evangelium Vitae”). Francis continues: “The firm rejection of the death penalty shows to what extent it is possible to recognize the inalienable dignity of every human being and to accept that he or she has a place in this universe.”

Today Pope Francis also condemned life imprisonment, which he calls a “secret death penalty.” George Williams, S.J., who served for many years as a Catholic chaplain at San Quentin Prison in California and worked with inmates on death row, praised the pope’s stance, saying "In nearly 30 years of prison ministry, I have witnessed the soul-killing damage caused by sentencing men and women to life in prison without the possibility of parole. I believe it is crueler to sentence someone to prison with no hope of ever getting out than it would be to execute them outright. Executions kill the body, but life without parole kills the human spirit."

With “Fratelli Tutti” Francis has moved opposition to the death penalty into the foreground of Catholic social teaching, completing the church’s long journey of mercy and reconciliation.

The full text of this new encyclical is available here in English, and the discussion of the death penalty starts at paragraph 263.  Here is the text of subsequent paragraph discussing both the death penalty and life imprisonment and prison reform:

268. “The arguments against the death penalty are numerous and well-known.  The Church has rightly called attention to several of these, such as the possibility of judicial error and the use made of such punishment by totalitarian and dictatorial regimes as a means of suppressing political dissidence or persecuting religious and cultural minorities, all victims whom the legislation of those regimes consider ‘delinquents’.  All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom.  I would link this to life imprisonment… A life sentence is a secret death penalty”.

Because I am not at all a scholar of Catholic teaching or documents, I am not sure if this new encyclical is a consequential new development in what I have long seen as the Catholic Church's modern categorical opposition to capital punishment.  But I am sure this might be one more thing for Senators to consider discussing with SCOTUS nominee Amy Coney Barrett in light of her   co-authored article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.

October 4, 2020 in Death Penalty Reforms, Religion, Who Sentences | Permalink | Comments (1)

"Eligible, but excluded: A guide to removing the barriers to jail voting"

The title of this post is the title of this notable new report released on Friday by the Prison Policy Initiative and the Rainbow PUSH Coalition.  Here is its starting paragraph: 

Most people in jail are legally eligible to vote, but in practice, they can’t.  This “de facto disenfranchisement” stems from numerous factors, including widespread misinformation about eligibility, myriad barriers to voter registration, and challenges to casting a ballot.  Below, we explain who in jail is eligible to vote (state by state), discuss the barriers that keep them from voting, and offer recommendations for advocates, policymakers, election officials, and sheriffs to ensure that people in jail are able to vote.

This AP article discusses the report and provides additional context under the headline "Voting nearly impossible for eligible voters behind bars." Here is an excerpt from the AP piece:

Most of the three-quarters of a million people held in U.S. jails have the right to vote. But many of them are unable to, stymied by misinformation, limited access to registration and ballots and confusion from the officials in charge. The result is widespread voter disenfranchisement, say experts with the Prison Policy Initiative. The advocacy organization released a report detailing voting access for jail inmates with Rainbow PUSH Coalition, a civil rights advocacy group formed by the Rev. Jesse Jackson, on Friday....

[M]ost people in jail haven’t been convicted, but instead are awaiting trial on the charges for which they are being held. While those convicted of a felony lose their right to vote in most states for at least the time they are incarcerated, many of the people serving time in jail are serving time for misdemeanors, and most states allow people with misdemeanor convictions to vote. Very few get to actually exercise that right, the study found. Confusion, logistical barriers and timing issues abound.

October 4, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Rounding up a few recent headlines and commentary of note for Sunday reads

Busy days on various fronts (and expected distractions by other matters in the coming week) has me concerned I will not find time blog at length about a number of recent news pieces and commentaries that seemed noteworthy.  So I will make up for limited time with a weekend round-up, which will link to the pieces and add a quick hit of comment/link/snark:

October 4, 2020 in Recommended reading | Permalink | Comments (2)

Saturday, October 3, 2020

"#MeToo and Mass Incarceration"

The title of this post is the title of this new piece on SSRN authored by Aya Gruber.  Here is its abstract:

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020).  The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities.  Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime law is not tough enough.  This punitive impulse, I argue, is dangerous and counterproductive, and should be abandoned.  History reveals that feminists' carceral approach often exacerbated social inequalities by expanding and underwriting the repressive criminal system, that harmed defendants, victims, and their families and communities.

This essay begins with the feminist defense attorney dilemma I felt as a law student, when I trained to represent marginalized people against state prosecutorial power but did so with a dread of defending horrific rapists and batterers. Later, as a public defender, I represented clients like Jamal, an accused abuser whose story is related in detail, and I saw firsthand the costs of the tough-on-crime machine that carceral feminism built.  The essay then moves to the present day, with a discussion of the #MeToo movement and campus rape reform.  I counsel contemporary feminists that their noble fight against sexual misconduct can easily collapse into simple crime-control politics and urge them to articulate their complex beliefs about gender and violence without relying on penal discourses and institutions that are steeped in hypermasculinity and gratuitous violence.

October 3, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 1, 2020

Council on Criminal Justice's new National Commission on COVID-19 and Criminal Justice releases first report on "Recommendations for Response and Future Readiness"

I noted here a few month ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.   This commission today released this first interim report titled "Recommendations for Response and Future Readiness," and here is a portion of its executive summary:

Since it was established in late July, the Commission has worked quickly, publishing six reports assessing the impact of COVID-19 on crime rates, budgets, and jail and prison populations. It has taken written and oral testimony from a broad spectrum of criminal justice organizations, researchers, advocates and others, including those recently released from correctional facilities.

This interim report, Recommendations for Response and Future Readiness, tackles the second goal. It is intended to assist criminal justice leaders on the front lines by offering actionable guidance on how to respond immediately and directly to the coronavirus pandemic, and to prepare for a possible second wave of infections this fall.  A subsequent report, to be released by the end of 2020, will offer consensus recommendations that address the broader implications of the pandemic and systemic reforms to policy and practice.

Guiding Principles

What should criminal justice leaders do, right now, when responding to COVID-19? What are the most important steps they can take immediately to limit the spread of the virus and improve readiness?

First, they should follow a set of key principles, as detailed in these recommendations.

  • Preserve public health in addition to public safety;
  • Get the facts and rely on strong data and science;
  • Be proactive, going above and beyond normal measures to protect all those connected to the criminal justice system; and
  • Improve equity and increase inclusion in decision-making, being mindful of the racial and other disparities that plague both the health and justice systems.

Cross-Sector Recommendations

Criminal justice leaders should also consider the following general recommendations that apply to all sectors of the system.

  • Stop exponential growth. Leaders should aim to exceed authoritative guidance from the Centers for Disease Control and other authoritative bodies in order to contain the potential exponential spread of COVID-19. Exponential growth means that one person infects many, and those many infect many more. It is imperative for leaders to prevent such growth of COVID-19 cases - and remain vigilant once it is controlled – by consistently implementing and enforcing well-known, scientifically proven measures such as physical distancing, universal masking, and mass testing.
  • Communicate transparently. Criminal justice leaders should be as transparent as possible in addressing the coronavirus pandemic. Leaders must communicate clearly, quickly, and repeatedly with staff, justice-involved populations and their families, and the public. They must also collect, report, and make public critical data related to COVID-19 infection, morbidity, and mortality, taking care to capture data by race and ethnicity in order to produce a full picture of how the virus has affected the groups most impacted by the justice system.
  • Limit contact, maximize distance, reduce density. Given the risks associated with criminal justice contact during the pandemic, leaders should take measures to limit system contact, maximize distance, and reduce density wherever possible. Such measures may include limiting custodial arrests, reducing admissions to and increasing releases from jails and prisons, and moving indoor operations and activities outside, among others.
  • Allocate resources strategically. The coronavirus pandemic has deeply impacted the local, county, and state budgets that fund the vast majority of criminal justice operations in the country. In response to declining revenues and shrinking budgets, leaders should allocate resources strategically rather than order simplistic across-the-board cuts. In particular, leaders should innovate, using technology to do more with less, as well as preserve funding for evidence-based programming and solutions that provide equitable access to justice.
  • Engage impacted communities. Critically, criminal justice leaders should actively collaborate with each other and engage and consider impacted communities in all decision making. Regular opportunities for input from disproportionately impacted groups should be provided, especially poor communities of color. Leaders should be mindful of the racial disparities that continue to plague the criminal justice and health systems and ensure their responses to COVID-19 do not exacerbate such disparities.

Sector-Specific Recommendations

The Commission recommends a series of measures for each of the four major sectors of the criminal justice system. These recommendations provide more detailed, specific guidance for leaders to address the unique realities of each sector.

October 1, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

"Transparency in Plea Bargaining"

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

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism.  Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record.  Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations.  For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

There are some valid reasons for protecting aspects of plea negotiations from public scrutiny.  Confidentiality fosters candor in the discussions and may encourage prosecutors to use their discretion more leniently.  It can help protect cooperating defendants from retaliation.  And it may expedite cases and conserve resources.

Yet the secrecy of the process also raises concerns.  It prevents adequate oversight of coercive plea bargains, untruthful guilty pleas, and unequal treatment of defendants. It can hinder defense attorneys from providing fully informed advice to their clients.  It can also potentially impair victims’ rights and interests.  Finally, the absence of transparency leaves judges with few guideposts by which to evaluate plea bargains and inhibits informed public debate about criminal justice reform.

This Article reviews plea bargaining laws and practices across the United States and argues that we can do more to enhance the documentation and transparency of plea bargaining. It then proposes concrete areas in which transparency can be improved without significant costs to the criminal justice system.

October 1, 2020 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Lots and lots of notable (and very consequential?) new criminal justice reforms now law in California

CaliforniaflagCalifornia has long been a very big and very interesting and very complicated state when it comes to criminal justice and sentencing reform. This fascinating state story continued with a lot of new bills being signed yesterday by Gov Gavin Newsom. This local article (which somewhat tracks this official document from the Governors office) provides some of the details and provides especially helpful links to the underlying legislation.  Here are excerpts focused on criminal justice reforms with my bolding added for follow-up comments:

Gov. Gavin Newsom signed landmark bills into law on Wednesday, the last day available for the governor to sign legislation.  The docket included racial justice, criminal justice, and policing reform, as well as legislation related to cannabis, rental housing, and banning hazardous chemicals and ingredients in cosmetics. 

This long list of signed bills has my head spinning, and the title of this post highlights that I am particularly curious and particularly uncertain about how consequential all these bills are likely to be.  I have bolded the two bills that, as a sentencing fan, strike me as particularly intriguing and potentially very consequential. 

AB 1950, which caps the duration of probation terms, has been described by REFORM Alliance as the "most transformative probation reform bill in the country."  This new Fox News article, headlined "Jay-Z, Meek Mill's REFORM Alliance celebrate 'major victory' with Calif. Gov. Newsom passing probation bill," talks about this new bill and the efforts and people behind making it law.  Here is a snippet:

On Wednesday, REFORM announced on Instagram it was celebrating a "MAJOR REFORM VICTORY." Through its verified Instagram account, the alliance thanked California Gov. Gavin Newsom for signing AB 1950 into law.  "This bill will help put hundreds of thousands of Californians on probation in positions to succeed and exit the criminal justice system for good.  Thank you @GavinNewsom!" the Instagram post reads.  In a follow-up post, the organization wrote, "This is just the beginning. This is how we #fightdifferent."...

REFORM's CEO Van Jones explained in a video statement that the law will essentially "make people be on probation for much less time" and will "give people a much better shot at getting out of that system, getting what they need and getting on their way."  The premise is to reduce the number of probation violations.

AB 2542, which provides for a California Racial Justice Act, seems to be the biggest and broadest racial justice act ever passed by any state because it seems to apply to all convictions and sentences and not just death sentences as did comparable Racial Justice Act passed in Kentucky and North Carolina years ago.  Notably, Michelle Alexander wrote this op-ed last week endorsing this bill and explaining its reach this way (with my emphasis added):

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including: 

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

I believe that the new California Racial Justice Act only applies prospectively, and so we will not see extensive litigation over past sentences as we did in North Carolina (and which led to the repeal of that state's Racial Justice Act). But even as just a prospective measure, I am inclined to predict that this new statute could prove highly consequential in all sorts of ways.

I am hopeful that smart folks who focus on the California criminal justice system might soon blog about to these bills and their potential impacts. And, of course, another wave of reform in California might not be far away: as this article highlights under the headline "Three ballot measures test attitudes on crime in California," a set of criminal justice initiatives being put to California voters next month will add to this remarkable 2020 reform chapter in the Golden State.

October 1, 2020 in Criminal Sentences Alternatives, Race, Class, and Gender, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Explaining the Past and Projecting Future Crime Rates"

The title of this post is the title of this notable new report coming from the Harry Frank Guggenheim Foundation and authored by James Austin, Todd Clear and Richard Rosenfeld.  Here is the relatively short report's abstract:

To date criminologists have a poor record of anticipating future crime rates.  As a result, they are ill-equipped to inform policy makers about the impact of criminal justice reforms on future crime.  In this report, we assess the factors that explain changes in crime during the past three decades.  Our analysis shows that macro-level economic and demographic factors best explain trends in violent and property crime.  Together, those factors outweigh the impact of imprisonment rates on crime.  We also show that it is possible to lower imprisonment rates without causing an increase in crime.  Indeed, several states have done exactly that.  Finally, we present models for projecting future crime rates.  Based on these models, crime is projected to decrease over the next five years.  The next step should be to apply similar analyses to individual states and local jurisdictions to advise policy makers on the implications of their criminal justice reform strategies for public safety.

October 1, 2020 in National and State Crime Data, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 30, 2020

Is Judge Amy Coney Barrett the first SCOTUS nominee to disclose multiple blog posts in her Senate questionnaire?

The question in the title of this post comes from my review of this new NPR piece headlined "What Barrett Would Recuse Herself From: Takeaways From Senate Questionnaire."  The NPR piece highlights a few parts of the 65-page questionnaire that Judge Barrett submitted to the Senate Judiciary Committee, but I was especially captivated by page 10 of that document.  On that page, Judge Barrett lists seven posts (and a comment) that she authored during a month she was guest-posting at PrawfsBlawg in March 2008.

Ever the blog fan, I checked out Judge Barrett's PrawfBlawg writings from a dozen years ago.  I was first bemused to discover that I was also guest-blogging at PrawfBlawg the same month as then-Professor Barrett.  Next, as a fan of temperance history, I especially enjoyed this post titled "Grape Vodka, Anyone?" (where perhaps some hints of originalism might be seen).  Ultimately, though, the most intriguing post for me and perhaps other sentencing fans is this one titled "Sentencing Guidelines and Retroactivity."   That post discusses at some length what then-Professor Barrett calls the "on-the-ground implications of retroactivity" of the crack guidelines that were reduced by the US Sentencing Commission in 2007.  

I won't say more about what are now dated blog musings by a SCOTUS nominee, but I will say I am pleased to be able to report that it seem a little blogging history does not alone disqualify a person from being tapped for the High Court.

September 30, 2020 in On blogging, Who Sentences | Permalink | Comments (0)

Heiress involved in NXIVM group gets way-above-guideline sentence

I have not really been following the NXIVM saga at all, but today brought a first federal sentencing case that caught my attention. This local article, headlined "Clare Bronfman receives more than six years for NXIVM crimes Federal judge exceeds sentence prosecutors had been seeking," provides these details:

Heiress Clare Bronfman was sentenced Wednesday to six years and nine months in federal prison for crimes related to her leadership role in NXIVM. She was taken directly into federal custody at the end of the court proceeding.

The sentence was handed down to the 41-year-old daughter of late Seagram's tycoon Edgar Bronfman in a Brooklyn courtroom after several victims related their painful experiences dealing with the well-heeled backer of Keith Raniere’s cult-like organization.

A number of former NXIVM members delivered victim impact statements to Senior U.S. District Judge Nicholas Garaufis. One of those women was Barbara Bouchey, a former girlfriend of Raniere's who faced years of retaliation by NXIVM after she left the group more than a decade ago. She called Garaufis' sentence justice served: “When I heard him say 81 months, I was speechless,” Bouchey said.

Bronfman, who has homes in Clifton Park and Manhattan, was anticipating a sentence of just 21 to 27 months in prison under sentencing guidelines for her guilty plea to conspiracy to conceal and harbor illegal aliens for financial gain, and fraudulent use of identification.

Garaufis had made it clear he was considering an "above guidelines" punishment. Her recently hired attorneys, Ronald S. Sullivan Jr. and Duncan Levin, have asked for three years of probation. Federal prosecutors in Brooklyn’s Eastern District have asked for a five-year prison sentence. Garuafis went beyond both requests. He also levied a $500,000 fine on Bronfman.

Prosecutors said Bronfman, who was in NXIVM alongside her older sister, Sara Bronfman-Igtet, used her wealth to recruit immigrants – usually women – into NXIVM-related groups under the idea that they would get a scholarship or work. But Bronfman instead got a work-force of recruits desperate to earn a living and who were dependent on her and NXIVM to stay in the country.  Prosecutors have said Bronfman helped Raniere target the company’s perceived enemies, which included members of the organization who defected....

Raniere, 60, a longtime Halfmoon resident known in NXIVM as “Vanguard,” was convicted at trial last year of all charges, which included sex trafficking, forced labor conspiracy and racketeering charges that included underlying acts that included child exploitation, possession of child pornography, identity theft, extortion, fraud and other crimes.  He faces the possibility of life in prison at his sentencing on Oct. 27.

This New York Times article reporting on the sentencing notes why this case may end up in the Second Circuit: "Ronald Sullivan, a lawyer for Ms. Bronfman, said he would appeal the sentence, calling it an 'abomination'."

September 30, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

New FBI crime data for 2019 reports more encouraging crime declines

Distracted by other matters, I have only today had the opportunity to focus on the release of the FBI's mostly encouraging crime data for 2019 (big data chart here), which is summarized in this official FBI press release.  Here are excerpts from the release:

For the third consecutive year, the estimated number of violent crimes in the nation decreased when compared with the previous year’s statistics, according to FBI figures released today.  In 2019, violent crime was down 0.5% from the 2018 number.  Property crimes also dropped 4.1%, marking the 17th consecutive year the collective estimates for these offenses declined.

The 2019 statistics show the estimated rate of violent crime was 366.7 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,109.9 offenses per 100,000 inhabitants.  The violent crime rate fell 1.0% when compared with the 2018 rate; the property crime rate declined 4.5%.

These and additional data are presented in the 2019 edition of the FBI’s annual report Crime in the United States. This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.

The UCR Program collects information on crimes reported by law enforcement agencies regarding the violent crimes of murder and nonnegligent manslaughter, rape, robbery, and aggravated assault, as well as the property crimes of burglary, larceny-theft, motor vehicle theft, and arson....  The program also collects arrest data for the offenses listed above and 20 offenses that include all other crimes except traffic violations.

Of the 18,667 federal, state, county, city, university and college, and tribal agencies eligible to participate in the UCR Program, 16,554 agencies submitted data in 2019.  A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2019, there were an estimated 1,203,808 violent crimes.  When compared with the estimates from 2018, the estimated number of robbery offenses fell 4.7% and the estimated volume of rape (revised definition) offenses decreased 2.7%.  The estimated number of aggravated assault offenses rose 1.3%, and the volume of murder and nonnegligent manslaughter offenses increased 0.3%.
  • Nationwide, there were an estimated 6,925,677 property crimes.  The estimated numbers for all three property crimes showed declines when compared with the previous year’s estimates.  Burglaries dropped 9.5%, larceny-thefts decreased 2.8%, and motor vehicle thefts were down 4.0%.
  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $15.8 billion in 2019.
  • The FBI estimated law enforcement agencies nationwide made 10.1 million arrests (excluding those for traffic violations) in 2019.
  • The arrest rate for violent crime was 156.3 per 100,000 inhabitants, and the arrest rate for property crime was 343.3 per 100,000 inhabitants....
  • In 2019, 13,247 law enforcement agencies reported their staffing levels to the FBI. These agencies reported that, as of October 31, 2019, they collectively employed 697,195 sworn officers and 306,075 civilians — a rate of 3.5 employees per 1,000 inhabitants.

As I have said in many prior posts, I think we should all always celebrate any and all crime declines in the US; we also should always keep in mind that the rates and numbers of murders and other violent crimes in the US are still higher than what is typically reported in many European nations and so we ought not pat ourselves on the back too much.  And, of course, perhaps due to all the disruptions of 2020, there has been a considerable spike in murders and shootings this year.  And yet the FBI's  Preliminary Uniform Crime Report for January–June 2020 reported  overall declines in the total number of violent crimes and property crimes over the first six months 2020 compared to the first six months of 2019.

Of course, all these data can be spun in many ways.  In recent years, I have been ever eager to suggest that criminal justice reform advocates should be sure to highlight that we have been experiencing continued reductions in all sorts of crimes amidst  sentencing reform being implemented or considered across the nation.  And 2019 was the first year in which the federal FIRST STEP Act was fully in effect and led to a measurable reduction in the federal prison population.  Based on these data alone, I would never assert that the FIRST STEP Act directly helped to reduce crime in 2019; but these data should make it harder for opponents of sentencing reform to make any facile claim that such reforms always results in crime increases.

Interestingly, this DOJ press release about the FBI data includes quotes from the Deputy Attorney General taking some credit for recent crime declines:

“For the last three years the Department of Justice has worked tirelessly with our federal, state, local, and tribal partners to pursue those violent criminals, cartels, and gangs who seek to harm our communities,” said Deputy Attorney General Jeffrey A. Rosen.  “We are steadfast in our commitment to protect the public safety of citizens and communities across the United States through violent crime initiatives like Project Safe Neighborhoods, Project Guardian and, most recently, Operation Legend.  Violent crime rates had been increasing during 2015-2016, so I am proud of the hard work by all prosecutors and law enforcement agents across the nation who have reduced violent crime rates during each of the last three years.  I look forward to continuing our joint efforts to protect the American public from the violence of criminals.”

Meanwhile, in this post over at Crime & Consequences, Kent Scheidegger seems to question whether the crime decline is just a reporting illusion: "This data set does not include crimes not reported to or otherwise known to the police.  As we have discussed on this blog previously, the change of many crimes from felonies to misdemeanors is likely to decrease reporting as the police are less likely to take any worthwhile action."

September 30, 2020 in National and State Crime Data | Permalink | Comments (0)

"Youth Justice Under the Coronavirus: Linking Public Health Protections with the Movement for Youth Decarceration"

The title of this post is the title of this notable new report written by Josh Rovner at The Sentencing Project.  Here is the start of its executive summary:

The novel coronavirus, COVID-19, has infected more than 1,800 incarcerated youth and more than 2,500 staff working in the detention centers, residential treatment facilities, and other settings that comprise the deep end of the juvenile justice system.  More than six months after the first infections emerged, the emergency is not over.

According to data collected by The Sentencing Project, COVID-19 cases have been reported among incarcerated youth in 35 states, the District of Columbia and Puerto Rico.  In five states, more than 100 incarcerated youth have tested positive.  Four staff members working in juvenile facilities have died from the virus.

In congregate care settings, this contagious pathogen’s spread was inevitable.  States and localities have taken steps to mitigate COVID-19’s impact, including releasing confined youth, curtailing admissions, limiting visitation and programming, and isolating youth in a manner that mimics solitary confinement.  Given the persistent racial and ethnic disparities in juvenile justice, there is little doubt that youth of color are suffering disproportionately from the virus and the changes within facilities that it has brought.

This report summarizes lessons learned through the first months of the pandemic, focusing on system responses, both positive and negative, to slow the virus’s spread and to protect the safety and wellbeing of youth in the juvenile justice system while keeping the public informed.  Drops in admissions during the pandemic, alongside decisions to release youth at a higher rate than during ordinary times, buttress the long-standing case that youth incarceration is largely unnecessary.  Jurisdictions must limit the virus’s damage by further reducing the number of incarcerated youth.

September 30, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, September 29, 2020

Any suggestions for sharp Prez debate questions on criminal justice issues?

Tonight begins the Prez debate season, though I am probably more looking forward to the MLB post-season.  I made the case in this post last month for why I think we ought to somehow arrange for one of the upcoming debates to be entirely about criminal justice issues, but that seems unlikely to happen either formally or informally.  Still, though these topics never get enough attention for my taste, I am hopeful  that the issues that consume this blog could be end up being discussed at some length and with some real bite tonight or at one or more of the coming debates.

Ever eager to help those with the challenging task of executing these debates, I am now eager to hear from readers in the comments  about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that any of the debate moderators are regular readers of the comment section of this blog, but you never know.

So, dear readers, what are your sharp suggestions for sharp Prez debate questions on criminal justice issues?

September 29, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (4)

Bureau of Justice Statistics releases "Capital Punishment, 2018 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with notable national data on the administration of the death penalty in the United States through 2018. As I have noted before, though BJS is often the provider of the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment. In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

September 29, 2020 in Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

Monday, September 28, 2020

Fifth Circuit panel rejects claims of unconstitutional or unreasonable trial penalty at sentencing

A Fifth Circuit panel ruling today addresses, but ultimately rejects, a white-collar defendant's claim that "her sentence should be vacated because it was the result of an unconstitutional 'trial penalty' — a punishment for choosing to exercise her right to stand trial instead of pleading guilty." US v. Gozes-Wagner, No. 19-20157 (5th Cir. Sept. 28, 2020) (available here).  Because I helped with an amicus brief in the case, I will not comment extensively beyond recommending the opinion be read in full and highlighting these passages (with footnotes and cites removed):

Here, however, Gozes-Wagner and Voronov were ultimately charged with different crimes that carried different statutory maximum sentences.  Although they may have participated similarly in the conspiracy, our job is not to look at their two sentences and decide whether we think Voronov and Gozes-Wagner should have been punished more equally based on their conduct.  Instead, our duty is to determine whether the district court sentenced Gozes-Wagner more harshly than it otherwise would have because she went to trial instead of pleading guilty.  And on this record, we cannot say that it did...

For example, if the district court plainly stated that it was punishing the defendant more severely than it otherwise would because she went to trial, that would clearly amount to a constitutional violation even absent a comparison to others similarly situated to the defendant. But that did not happen here.

We recognize that most — if not all — cases will not be so cut-and-dried, and that a defendant’s constitutional rights may be violated even absent such an explicit statement.  In those cases, it is the comparison to others that necessarily sheds light on whether a constitutional violation occurred.  If the only meaningful difference between defendants was that one went to trial and the others did not, and the trial-standing defendant received a much more severe sentence than the pleading defendants, it could very well be the case that vacatur of the sentence will be required on trial penalty grounds.  But a defendant who cooperates with the Government is not similarly situated to one who refuses to do so.  Nor are defendants similarly situated when they are convicted under different statutes that carry different maximum sentences.  If the case were otherwise, we would be holding that the Constitution mandates that defendants convicted of committing different crimes be sentenced similarly if the conduct underling those convictions is similar.  We see no such mandate in the Constitution or in the Due Process caselaw addressing claims like Gozes-Wagner’s.

I cannot help noting that, though nothing "in the Constitution or in the Due Process caselaw" may speak to sentencing disparities, Congress expressly instructed sentencing judges, in 18 USC 3553(a)(6), to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  And the sentencing judge in this case knew that defendant Voronov (who "participated similarly in the conspiracy") faced a 5-year maximum sentence after pleading guilty, but he still gave Gozes-Wagner a sentence of 20 years.  That served as one basis for arguing that this sentence was unreasonable even if not unconstitutional, but the Fifth Circuit panel was ultimately unmoved on reasonableness arguments:

Nothing in the record suggests that the court went out of its way to punish Gozes-Wagner for going to trial. To the contrary, when presented with arguments that she was similarly situated to her co-defendants, the district court correctly pointed out that for various reasons, including the fact that her co-conspirators pleaded guilty to charges carrying lower maximum sentences, she was not similarly situated to them at sentencing. The record does not reflect a clear error of judgment in the district court’s balancing of the § 3553(a) factors.

September 28, 2020 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Split First Circuit panel recognizes, in 2255 proceeding, Johnson vagueness claim as to old mandatory career-offender guideline

The very title of this post is likely inscrutable to persons not intimately familiar with the ins and outs of federal sentencing law and practice.  But those who are intimately familiar with the ins and outs of federal sentencing law and practice will want to check out Shea v. US, No. 17-1899 (1st Cir. Sept 28, 2020) (available here), to see the debate over whether an armed bank robber originally sentenced in 1995 to over 47 years in federal prison might now have a chance to be resentenced.  The majority (per Judge Thompson) says yes in a lengthy opinion that starts this way:

In Johnson v. United States, 576 U.S. 591, 597 (2015), the Supreme Court held that a jumble of words in a federal law could not be used to fix a defendant's sentence, a rule that applies retroactively.  See Welch v. United States, 136 S. Ct. 1257, 1264 (2016).  Years ago, judges used the same wording in another binding rule with "the force and effect of law[ ]," United States v. Booker, 543 U.S. 220, 234 (2005) — § 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix defendants' sentences.  Because Johnson made that unconstitutional, we reverse the district court's decision denying the motion to vacate and remand for further proceedings.

Judge Selya has a short dissent that starts this way:

Time-and-number limitations, generally applicable to certain collateral review proceedings, may sometimes be relaxed when a petitioner seeks to avail himself of a new rule of constitutional law announced by the Supreme Court and expressly made retroactive to cases previously decided.  See Teague v. Lane, 489 U.S. 288, 310 (1989) ("[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced . . . [u]nless they fall within an exception to the general rule."); see also Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (discussing exceptions to general bar on retroactivity).  But this principle does not provide free rein to the lower federal courts — the courts of appeals and the district courts — either to extend a rule into uncharted waters or to speculate about where a Supreme Court decision might eventually lead.  My colleagues' decision crosses this line, staking out a position that the Court has yet to articulate.  Because I cannot join this excursion into forbidden terrain, I write separately.

September 28, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

"Prosecutors and Mass Incarceration"

The title of this post is the title of this new article available via SSRN authored by Shima Baradaran Baughman and Megan Wright.  Here is its abstract:

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry.  Yet among the major players — legislators, judges, police, and prosecutors — one of these is shrouded in mystery.  While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability.  Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings.  Why?

September 28, 2020 in Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, September 27, 2020

Some interesting early accounting of Judge Amy Coney Barrett's interesting Seventh Circuit criminal justice work

Judge_Barrett_Trump_Supreme_Court_SEPT_2020_Rose_GardenOver at Reason, Jacob Sullum last week already assembled and assessed in this lengthy piece a review of Seventh Circuit Judge (and now SCOTUS nominee) Amy Coney Barrett's judicial record regarding the "treatment of criminal defendants' constitutional and statutory claims."  I recommend that thorough review, and here is part of its lead in:

When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes.  Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases.  Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas.  By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.

The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture.  While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.  It is clear from Barrett's record that she does not reflexively side with the government in criminal cases.

In a somewhat similar vein, ABC News has this new piece reviewing a handful of Judge Barrett's Seventh Circuit rulings headlined "3 cases that hint at Amy Coney Barrett's views on policing."  On a slightly different front, Matt Ford at The New Republic has this notable review of Judge Barrett's notable dissenting work in Kanter v. Barr, 919 F.3d 437 (2019), under the (inaccurate) headline "Amy Coney Barrett Wants Felons to Have Guns, But Not Votes."

With the help of Westlaw, I have done a way-too-quick review of Judge Barrett's sentencing work on the Seventh Circuit, and I did not find any cases nearly as intriguing or as telling as Kanter (which I blogged about here when it was first handed down).  I would welcome input from readers (and especially from any Seventh Circuit sentencing litigants) about whether Judge Barrett seems to follow in the footsteps of her former boss Justice Scalia on most criminal justice matters.  

Notably, Justice Scalia was a pretty reliable vote against capital defendants during his three decades on the Court, but Judge Barrett's most notable work on the death penalty came decades ago in the form of a co-authored law review article published while she was a law clerk on the DC Circuit.  Specifically, now-Judge Barrett co-wrote an article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has much nuance, and I suspect it will get read closely by lots of folks in the days ahead. 

September 27, 2020 in Who Sentences | Permalink | Comments (0)

Saturday, September 26, 2020

Some notable quotables from a high-profile speaker sounding like an advocate for criminal justice reform

A colleague made sure I checked out the full text of an interesting speech given by a high-profile speaker earlier this month.  Some of the lines from the speech struck me as particularly "quote-worthy" for federal criminal justice reform advocates and especially federal defense attorneys.  Here are some of the quotes that caught my reform-oriented eye:

People facing federal investigations incur ruinous legal costs and often see their lives reduced to rubble before a charge is even filed.... 

[Prosecutorial] power ... must be carefully calibrated and closely supervised.  Left unchecked, it has the potential to inflict far more harm than it prevents....

It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated, and prosecuted to the Nth degree.

Our system works best when leavened by judgment, discretion, proportionality, and consideration of alternative sanctions....

Individual prosecutors can sometimes become headhunters, consumed with taking down their target....

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, [DOJ has] advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and [DOJ] must stop doing it....

The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage....

[I]t is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.  

As I read these quotes, I was tempted to wonder if this was really from a talk given at the Brennan Center or the ACLU by a leading criminal justice reform advocate.  For example, the statement that "our system works best when leavened by judgment, discretion, proportionality, and consideration of alternative sanctions" serves as a lovely account for why severe mandatory minimum sentencing provision are a very bad idea.  And the statement that "the criminal law is supposed to be reserved for the most egregious misconduct" sounds like a prelude to advocating for legalizing marijuana and perhaps decriminalizing all drug possession offenses.

But, as readers will discover if they click through here to see who recently spoke these words, most of us do not generally think of this speaker as a leading criminal justice reform advocate.

September 26, 2020 in Who Sentences | Permalink | Comments (3)

Might a notable celebrity endorsement help move a notable criminal justice reform ballot initiative toward passage in Oklahoma?

6416a9d467b9d4d8149586c51171eb55The question in the title of this post is prompted by this local press story headlined "Actress Scarlett Johansson supports Okla. State Question 805 in video."  Here are the basics from this short article (which includes the short video):

Actress Scarlett Johansson supported Oklahoma's State Question 805 in a video shared by Oklahomans for Sentencing Reform.

State Question 805, if passed on Nov. 3, ends repeat sentence penalties for nonviolent offenses in the state of Oklahoma, said officials with Oklahomans for Sentencing Reform. The penalties often add years, decades or even a life sentence for a nonviolent offense if someone had been convicted of a nonviolent offense in the past.

Oklahoma's overcrowded prisons put more women in prison per capita than any state in the nation, Oklahoma to lead the nation in incarceration rates. This is costing taxpayers over half a billion each year on corrections without improving public safety, said officials. If passed, State Question 805 will save the state almost $186 million over the next decade. This funding "could be reinvested in mental health and rehabilitative resources that have been proven to reduce the likelihood that someone will commit another crime," said officials.

State Question 805 is on the ballot in November 3, 2020 elections.

The full endorsement video, which is fairly somber and sadly does not include Black Widow costume or any other Avenger, is available at this link.  I have blogged a few times about this fascinating approach to criminal justice reform, which the "Yes on 805" campaign website describes this way:

WHAT DOES SQ 805 DO?

SQ 805 would end the practice of adding years to a person’s prison sentence for a nonviolent crime because they had a prior nonviolent conviction.  Under SQ 805, people who are convicted of nonviolent crimes could be sentenced up to the maximum allowable time in prison for their crime, but would not receive additional time in prison because of their past.  SQ 805 applies only to people with nonviolent offenses.

WHY IS SQ 805 NEEDED?

Oklahoma is handing down cruel and unfair sentences for minor crimes.  A second conviction for breaking into a shed can result in a life sentence. In Oklahoma an individual served 33 years in prison for writing $400 worth of bad checks, and a mother was sentenced to 15 years for stealing basic necessities and children’s toys from a Walmart. SQ 805 will limit sentences like these that are out of proportion to the crimes.

Unsurprisingly, the "No on SQ 805" campaign website present a distinct account of what this initiative would mean and do:

State Question 805 (SQ805) will create a culture where crime is okay in Oklahoma by reducing penalties for career criminals. With SQ805, habitual offenders of serious crimes will spend less time in prison. These crimes range from domestic violence in the presence of a child, home burglary, to child trafficking, soliciting sex from a minor using technology, animal cruelty and more.

  • SQ 805 will FOREVER treat convicted felons who repeatedly commit crimes, on any but the most heinous of crimes, to the same sentence range as first-time offenders.
  • SQ 805 is a CONSTITUTIONAL CHANGE which prohibits the legislature from addressing any of the myriad of negative consequences SQ 805 will bring.
  • SQ 805 is retroactive and will mandate reduced sentences for many of those currently in prison, disregarding the juries and judges who gave out those sentences.
  • Regardless of if the criminal has been convicted of a felony 20 or more times, under 805, the sentence can never be lengthened or enhanced because of these past actions.

This Ballotpedia page about SQ 805 provides a lot more background information about this initiative, but it does not reference any polling about the measure.  I know this initiative is one I will be watching closely on election night.  If it were to pass in a state like Oklahoma, it could well be rolled out in other initiative states in the years to come.

Prior related posts:

September 26, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"The Perils of 'Old' and 'New' in Sentencing Reform"

The title of this post is the title of this notable new essay authored by Jessica Eaglin now available via SSRN. Here is its abstract:

The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states.  While tools' proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy.  This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea.  It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond.  It then examines debates about two conceptual issues — selective incapacitation and equality — to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting.

Rather than using the "old" nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration.  It urges scholars to dispense of the "old" and "new" concept when reflecting on whether and why actuarial risk assessments are proliferating in the states.  It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

September 26, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, September 25, 2020

Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise"

I am very pleased to see the first of what may soon be many circuit rulings on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have consider this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.  COVID realities, of course, raised the need for and stakes of this important provision of federal sentencing law.

The first significant circuit ruling on the reach and application of this statute is a great one, coming from a Second Circuit panel in US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here).  Though I may be a bit biased because this opinion was penned by a former boss of mine (Judge Guido Calabresi), I suspect others will share my view that this ruling is a great accounting of applicable law and a great outcome.  Here are just a few excerpts from the 21-page opinion (some analysis may follow in future posts):

The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), was simultaneously monumental and incremental.  Monumental in that its changes to sentencing calculations, mandatory minimums, good behavior credits and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated.  Incremental, in that, rather than mandating more lenient outcomes, it often favored giving discretion to an appropriate decisionmaker to consider leniency.

This case reflects that dichotomy.  The First Step Act provision we analyze overturned over 30 years of history, but at the same time it often did no more than shift discretion from the Bureau of Prisons (“BOP”) to the courts.  We must today decide whether the First Step Act empowered district courts evaluating motions for compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D) (“Application Note 1(D)”), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling.  Because we hold that Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....

For all of these reasons, the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion....

Nor can we say, as a matter of law, that a court would abuse its discretion by granting someone compassionate release on this record.  It bears remembering that compassionate release is a misnomer.  18 U.S.C. § 3582(c)(1)(A) in fact speaks of sentence reductions.  A district court could, for instance, reduce but not eliminate a defendant’s prison sentence, or end the term of imprisonment but impose a significant term of probation or supervised release in its place. Id.  Beyond this, a district court’s discretion in this area — as in all sentencing matters — is broad.  See United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc) (noting a district court’s “very wide latitude” in sentencing). The only statutory limit on what a court may consider to be extraordinary and compelling is that “[r]ehabilitation … alone shall not be considered an extraordinary and compelling reason.”  28 U.S.C. § 994(t) (emphasis added).

In the instant case, Zullo does not rely solely on his (apparently extensive) rehabilitation.  Zullo’s age at the time of his crime and the sentencing court’s statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction.  Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984.  See S. Rep. No. 98-225, at 55-56 (1984) (noting that reduction may be appropriate when “other extraordinary and compelling circumstances justify a reduction of an unusually long sentence” (emphasis added)); see also United States v. Maumau, No. 2:08-CR-00758-TC-11, 2020 WL 806121, at *6-*7 (D. Utah Feb. 18, 2020) (further discussing this history and collecting cases where district courts have reduced sentences in part because they were overly long).

September 25, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, September 24, 2020

Federal government completes its seventh (and final?) execution in 2020

The federal government this evening completed is seventh execution in the span of just over two months.  This AP article, headlined "Feds put first Black inmate to death since execution restart," provides these details:

A man who killed a religious couple visiting Texas from Iowa was executed Thursday, the first Black inmate put to death as part of the Trump administration’s resumption of federal executions.

Christopher Vialva, 40, was pronounced dead shortly before 7 p.m. EDT after receiving a lethal injection at the federal prison in Terre Haute, Indiana.  In a last statement, Vialva asked God to comfort the families of the couple he had killed, saying, “Father … heal their hearts with grace and love.” His final words were: “I’m ready, Father.”...

A report this month by the Washington, D.C.-based Death Penalty Information Center said Black people remain overrepresented on death rows and that Black people who kill white people are far more likely to be sentenced to death than white people who kill Black people.  Of the 56 inmates currently on federal death row, 26 — or nearly 50% — are Black, according to center data updated Wednesday; 22, or nearly 40%, are white and seven, around 12% were Latino. There is one Asian on federal death row.  Black people make up only about 13% of the population....

Vialva was 19 years old in 1999 when he shot Todd and Stacie Bagley and burned them in the trunk of their car.  Vialva’s lawyer, Susan Otto, has said race played a role in landing her client on death row for killing the white couple.  Vialva was the seventh federal execution since July and the second this week.  Five of the first six were white, a move critics argue was a political calculation to avoid uproar.  The sixth was Navajo.

“I believe when someone deliberately takes the life of another, they suffer the consequences for their actions,” Todd Bagley’s mother, Georgia, wrote in a statement released after the execution.  “Christopher’s mother had the opportunity to visit him for the past 21 years,” she wrote.  “We have had to wait for 21 years for justice and closure. We cannot be with our children for visits or to see them on holidays. We were denied that privilege,” Bagley’s mother wrote.

In the video statement his lawyers released Thursday, Vialva expressed regret for what he’d done and said he was a changed man. “I committed a grave wrong when I was a lost kid and took two precious lives from this world,” he said. “Every day, I wish I could right this wrong.”

As detailed at this DPIC webpage, there remain 55 persons on federal death row, ten of which were convicted more than two decades ago. As of this writing, Attorney General Barr has not yet sought to set dates for any additional federal executions, but he has moved quickly in the past.

September 24, 2020 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

Understanding-Drug-Sentencing_for-web2I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  Here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

September 24, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

Wednesday, September 23, 2020

Interesting accounting of Facebook spending and advertising by presidential campaigns

The Marshall Project has this fascinating lengthy new piece on criminal justice advertising by the presidential candidates during the 2020 election cycle so far.  The full headline of the piece, which highlights its themes, is "Trump’s Crime and Carnage Ad Blitz Is Going Unanswered on Facebook: The president has spent millions on misleading Facebook ads targeting undecided voters, while Joe Biden has been virtually silent."  I recommend the piece in full, and here are excerpts:

To understand how Republicans and Democrats are using criminal justice issues to reach voters, the Marshall Project analyzed hundreds of thousands of political campaign advertisements on Facebook from December 2019 to this month. Arguably the most powerful political messaging platform in history, Facebook allows candidates to microtarget tailored messages to demographic groups and even to individual voters by name.  Probing that data lets us see how candidates reach voters, with a level of detail that earlier generations of strategists and political pundits could only dream of.

Our analysis found that of the $82 million Trump’s reelection campaign has spent on Facebook ads this year, $6.6 million paid for ads about crime and policing — a top focus of his Facebook campaign. Almost all of it came since George Floyd was killed by police in Minneapolis in May.  More than one-third of those ad buys were aimed at key battleground states and many sought to persuade specific undecided voters, and married women in particular.  The Biden campaign?  It didn’t spend a cent on criminal justice ads on Facebook until late August, choosing instead to focus on the COVID-19 pandemic and economic recovery.  Yet Biden had, during the Democratic primaries, articulated a more progressive criminal justice platform than any of his party’s recent nominees....

Trump’s message on criminal justice began with a focus on reform.  Last December, his campaign ran ads featuring the First Step Act, the criminal justice reform bill he signed in 2018, boasting that the president was “helping prisoners gain a new lease on life and is making America safer.”

Then in May, for three days before Memorial Day — when George Floyd would die on a Minneapolis street — Trump spent more than $175,000 on ads criticizing Biden for his role in policies like the 1994 crime bill: “Mass incarceration has put hundreds of thousands behind bars for minor offenses.”

It’s not clear who those ads were meant to reach as they sought to capitalize on Biden’s “If you have a problem figuring out whether you’re for me or Trump, then you ain’t Black” quote in a May interview.  They disappeared quickly as protests against police brutality began in cities across the country.

By early July, as the protests continued, the Trump campaign had decisively shifted its tone.  In one ad, a 911 call is picked up by an answering machine that says, “You have reached the 911 police emergency line.  Due to defunding of the police department, we’re sorry but no one is here to take your call.  If you’re calling to report a rape, please press 1.”

Around that same time, Biden’s Facebook ads focused on praising essential workers dealing with the coronavirus pandemic and on vague messages of national unity.

You wouldn’t have seen any of these ads if you live in a state like California or Oklahoma that is considered a firm lock for one party.  Biden’s were shown in a narrow group of swing states, including Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin.  The Trump campaign paid Facebook about $1.5 million to show its “911” ads only to people in a slightly wider list of battleground states that included Ohio and Texas.  Since June, Trump’s campaign has spent about $2.6 million on criminal justice–related ads targeted to battleground states.

In the battleground states, these persuasive ads are not aimed at every voter.  The power of Facebook for campaigns is that it allows them to show ads directly to the specific voters they think are most likely to be on the fence.  The Trump campaign asked Facebook to show its “911” ad to at least two separate groups of people: first, to married women—the “suburban housewives” Trump has said he hopes to reach — and, second, to people specified by their name or phone number on a spreadsheet the campaign uploaded to Facebook. 

There are two main kinds of political ads on Facebook: ones intended to win votes and ones intended to encourage donations. That Trump’s “911” ad was presented to users in toss-up states suggests the goal was to persuade people to change their minds, according to digital political strategists.  When either campaign wants to raise money, they show ads to their own supporters in uncontested states like deep blue New York where they’d be unlikely to pick up additional electoral votes.

September 23, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (0)

"The Unified Theory of Punishment"

The title of this post is the title of this new revised book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

Most of the history of the philosophy of punishment is about our making choice of which theory to support and defend against all the rest.  Over time, there have been several attempts aiming to bring two or more theories together in new hybrid formulations.  This penal pluralism can be too quickly dismissed as conceptually contradictory.  At face value, there is a clear and undeniable clash between, say, supporting retributivism and consequentialist views like deterrence or rehabilitation.

For example, the punishments that retributivism might support as ‘deserved’ may lack or run counter to what might cause some desired effect.  Traditionally, the way this clash has been handled most frequently — as seen in Chapter 5 — is to say the justification for deciding who to punish is governed by one goal (e.g., typically retributivist desert) and the amount of punishment distributed to any deserving person is determined by a second, different goal (e.g., usually deterrence).  In giving each goal a different space, they avoid confrontation.  However, what this formula gains in practicability it loses in showing any theoretical coherence.  As we have seen, if desert is so important to justify punishment, why is it irrelevant to setting its amount?  And what necessary connection exists between them holding the two together as one integrated theory? For these reasons, critics have claimed that hybrid theories are unstable at best and incoherent at worst.  Given the way most are formulated, it is easy to agree — but yet it would be a serious mistake to write off the possibility and plausibility of hybrid theories if they might overcome those concerns.

This newly rewritten chapter for this second edition introduces and defends a new hybrid theory: the unified theory of punishment.  Instead of taking a side between retributivist and other positions, the unified theory is an attempt to show how multiple penal goals can be brought together coherently in a single framework, or what might be called a ‘grand unifying theory’ of punishment succeeding where others have failed.  I will argue that not only is the unified theory possible, but that it is most compelling and best able to address the complexity of criminal cases and deliver multiple benefits in a measure and evidenced way, providing a new way of expanding restorative practices as well.

The structure of this chapter is as follows.  First, it begins examining penal pluralism as found in sentencing guidelines, but lacking any framework for how different penal purposes can be coherently applied in any consistent way.  Second, I will provide an overview of philosophers starting primarily with Hegel who first attempted to create a new unified theory.  Thirdly, I will next formulate my own model for how a unified theory might work.  Key to this model is our ability to evidence whether its overarching aim — of protecting and maintaining rights — is fulfilled in a significant change in my thinking.  The chapter then considers several possible objections.

September 23, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, September 22, 2020

Federal government completes its sixth execution in 2020

Prior to 2020, the federal government executed only three persons in over half a century.  But thanks largely to the efforts and persistence of US Attorney General William Barr, the feds as of tonight have been able to complete double that many executions in just the year 2020.  This AP story about the latest execution, headlined "US government executes killer obsessed with witchcraft," includes these details:

The U.S. government on Tuesday executed a former soldier who said an obsession with witchcraft led him to kill a Georgia nurse he believed had put a spell on him.

William Emmett LeCroy, 50, was pronounced dead at 9:06 p.m. EDT after receiving a lethal injection at the same U.S. prison in Terre Haute, Indiana where five others have been executed i n 2020 following a 17-year period without a federal execution....

Another execution, of Christopher Vialva, is scheduled Thursday. He would be the first African-American on federal death row to be put to death in the series of federal executions this year....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy’s lawyers sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn’t properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.

September 22, 2020 in Death Penalty Reforms | Permalink | Comments (0)

Another accounting of Justice Ginsburg's criminal justice legacy

I receive via email from Arizona State College of Law's Academy for Justice a terrific review (with links) of some of Justice Ruth Bader Ginsburg major work in criminal justice cases during her tenure on the Court, as well as some leading scholarship discussing this work. I got permission to reprint this collection here, so:

Some of Justice Ginsburg's Criminal Justice Opinions:

Some Scholarship Addressing Justice Ginsburg's Contributions

UPDATE: The Marshall Project has this extended new piece with lots of quote from criminal justice advocates and scholars under this full headline "RBG’s Mixed Record on Race and Criminal Justice: Ruth Bader Ginsburg was a revered feminist icon. Her legacy on issues such as prisoners’ rights, capital punishment, racial justice and tribal sovereignty has been less examined."

September 22, 2020 in Who Sentences | Permalink | Comments (1)

"Virtual Reality: Prospective Catalyst for Restorative Justice"

The title of this post is the title of this new article now on SSRN authored by Kate Bloch. Here is its abstract:

A 2018 U.S. Department of Justice report assessing data from 30 states found that 83% of individuals released from state prisons in 2005 were rearrested within nine years.  When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention.  In countries around the world, restorative justice has been emerging as a promising candidate.  It generally involves an interactive process in which stakeholders identify and grapple with harms caused by the crime. 

But many environments lack the resources to invoke its benefits.  While restorative justice takes various forms, the crux of each variant involves perspective taking — seeing the harm and its consequences through the eyes of those who experienced it.  Cognitive science research suggests that the emerging technology of virtual reality provides an innovative and often especially compelling approach to perspective taking.  Embodying an avatar offers the opportunity to experience the world as another and could make virtual perspective-taking encounters a valuable introduction for subsequent in-person encounters or offer a perspective-taking opportunity when in-person encounters are not practical or prudent.  This analysis explores how virtual reality could become a catalyst for restorative justice.

September 22, 2020 in Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0)

Pending federal executions to be first SCOTUS matters to be resolved without the late Justice Ginsburg

As reported in this CBS News piece, a "former U.S. soldier who said an obsession with witchcraft led him to slay a Georgia nurse in a bid to lift a spell he believed she put on him is the first of two more inmates the federal government is preparing to put to death this week."  Here is more about this and another federal execution scheduled for the coming days:

William Emmett LeCroy, 50, on Tuesday would be the sixth federal inmate executed by lethal injection this year at the U.S. prison in Terre Haute, Indiana.

Another is scheduled for Thursday of Christopher Vialva, who would be the first African-American on federal death row to be executed this year. LeCroy is white, as were four of the five inmates executed earlier. The fifth was a Navajo.

Critics say President Donald Trump's resumption of federal executions this year after a 17-year hiatus is a cynical bid to help him claim the mantel of law-and-order candidate leading up to Election Day. Supporters say Mr. Trump is bringing long-overdue justice to victims and their families....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy's lawyers have sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn't properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.  None of those appeals have succeeded, though lawyers could continue to ask for court intervention up to the hour of his scheduled execution. Last-minute legal appeals by the previous five death-row inmates all failed.

This lengthy Intercept article, headlined "Trump Prepares To Execute Christopher Vialva For A Crime He Committed As A Teenager," reports on the particulars of the person and crime leading to the federal execution scheduled for Thursday.

As these press reports and the headline of the post indicate, various "last-minute legal appeals" are being brought on behalf of these defendants and these appeals all are likely to come before the Supreme Court in the coming days and hours.  As is common in capital cases, many of these appeals may ultimately come before the US Supreme Court.  But, for the first time in nearly three decades, Justice Ruth Bader Ginsburg will not be one of the Justices considering these appeals.

September 22, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 21, 2020

Notable research from Pennsylvania on positive pardon consequences

I just came across this interesting webpage at the site of the group Philadelphia Lawyers for Social Equity. The page highlights a pair of reports about the consequences of pardons in the state over a decade. Here is the summary from site:

In April 2020, the Economy League issued a pathbreaking report, finding that pardons issued over a ten-year period (2008-2018) had contributed $16.5 million to Pennsylvania’s economy, and urged the Board of Pardons to increase the number of pardon applicants, the percentage of applications granted, and the speed in which pardons are granted or denied.  Public officials and civic leaders praised the report, but cautioned that there needed to be “continued oversight for public safety concerns.”

Examining the same decade of data and over 3,000 files in its August 2020 report, PLSE conclusively demonstrated that there is no reason for concern when granting pardons to people who have already completed their sentences and need pardons so they can get, for themselves and their families, the better jobs, housing, credit, and other opportunities of life for which they are qualified.  PA Attorney General Josh Shapiro called the report “valuable and important.” 

Click here to read the press release.
Click here to read the report written by PLSE’s co-founder Ryan Allen Hancock and Executive Director Tobey Oxholm.
Click here to read the Economy League’s report.

September 21, 2020 in Clemency and Pardons | Permalink | Comments (0)

Big new NPR investigation showing pulmonary edema in executed inmates suggests a painful process

NPR has this interesting and extended new piece about the medical realities of modern executions under the headline "Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection."  The who piece should be reviewed in full for anyone who follows closely the debates over execution methods, and I am pleased to see that the piece discusses the ground-breaking litigation that has been pioneered by Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions who happens to be a former student of mine.  I cannot easily summarize the piece, but here is an excerpt:

[Emory University Hospital doctors] Zivot and Edgar found pulmonary edema occurring in about three-quarters of more than three dozen autopsy reports they gathered.  "The autopsy findings were quite striking and unambiguous," says Zivot.  He had imagined that lethal injection induced a quick death and would leave an inmate's body pristine, or at least close to it. But the autopsies told another story.  "I began to see a picture that was more consistent with a slower death," he says. "A death of organ failure, of a dramatic nature that I recognized would be associated with suffering."...

Zivot and Edgar brought their findings of pulmonary edema to federal courts in Georgia, Arkansas, Missouri, Tennessee and Ohio.  That evidence is now at the forefront of constitutional challenges to the death penalty in the United States.  It has even made its way to the Supreme Court, where lawyers for inmates on federal death row have used autopsies to argue that lethal injection protocols constitute cruel and unusual punishment under the Eighth Amendment.

Now, an NPR investigation has expanded the scope of this evidence of pulmonary edema significantly.  A review of more than 200 autopsies — obtained through public records requests — showed signs of pulmonary edema in 84% of the cases.  The findings were similar across the states and, notably, across the different drug protocols used....

Doctors who spoke with NPR about the findings also raised serious concerns that many inmates are not being properly anesthetized and are therefore feeling the suffocating and drowning sensation brought on by pulmonary edema.  The findings come at a time when death penalty states are already facing scrutiny over drug shortages, untrained execution personnel and a series of high-profile botched executions.

"These autopsy reports show definitively without question that these inmates are developing pulmonary edema," says Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions.  "That evidence continues to build and continues to get better every time another execution happens, unfortunately."

September 21, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Wage Theft Criminalization"

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

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace.  The phrase invokes a certain moral clarity: theft is wrong.  The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished.  Harshly.  Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes to reach wage theft.

In this Article, I examine the drive to criminalize wage theft.  In the literature on workers’ rights, “wage theft” has been accepted uncritically as a distinct problem.  But the literature fails to grapple with what makes wage theft clearly distinguishable from other abusive practices endemic to capitalism.  For scholars concerned about worker power and economic inequality, does classifying one class of conduct “wage theft” actually serve to legitimate the other injustices of the labor market?

Further, the literature on wage theft has failed to reckon with the stakes of using criminal law and incarceration as the tools to remedy workplace violations.  Absent from the discourse on wage theft is any engagement with one of the most vital contemporary movements to confront structural inequality: the fight to end mass incarceration.  Despite insistence from proponents of wage theft criminalization that their focus is on society’s most marginalized, particularly poor people of color, these advocates have turned to a criminal system that is widely viewed as inimical to the interests of those same marginalized populations.  Moreover, in calling for criminal prosecution, many commentators have embraced the same actors and institutions that have decimated poor communities and constructed a hyper-policed population.  By resituating wage theft within the literature on mass incarceration, I examine the limitations of using criminalization to redress economic injustices.  I frame pro-criminalization arguments within the growing literature and activist discourse on decarceration and abolition, examining why criminalization of wage theft is and might be particularly problematic.

September 21, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, September 20, 2020

Spotlighting notable series of substantive reasonableness reversals by the Sixth Circuit

A helpful reader sent me this thoughtful review of some notable recent reasonableness rulings by the Sixth Circuit:

The review of sentences for substantive reasonableness is often thought of as toothless, or as a “one-way ratchet” toward more severe sentences.  Of the countless appeals challenging sentences as overly harsh, only a couple of dozen have prevailed.  (Government appeals challenging sentences as too lenient seem to have found more success).  Appellate courts have been far more willing, on a defendant’s appeal, to say the sentencing court failed to follow proper procedures than to say the sentence was just too long.  In a trio of recent 2-1 decisions, however, the Sixth Circuit has done just that, reversing above-Guidelines sentences where there was an insufficient justification for the upward variance and putting some substance into substantive reasonableness review.

This line of cases started with United States v. Perez-Rodriguez, where the Sixth Circuit reversed an above-Guidelines sentence of 24 months in an illegal re-entry case where the Guidelines range was 8 to 14 months. 960 F.3d 748 (6th Cir. 2020).  Over a dissent, the Court held that the upward variance was substantively unreasonable because this was a “mine-run” case where the upward variance was unjustified and “created unwarranted sentencing disparities.” (Interestingly, in doing so, Judge Stranch drew on her opinion in United States v. Boucher, 937 F.3d 702 (6th Cir. 2019), where the court had held that a sentence of just 30 days for Rand Paul’s attacker, when the Guidelines range was 21 to 27 months, was substantively unreasonable because it was a “mine-run case.” Thus, at least in this instance, the ratchet went both ways.)

In the less than four months since Perez-Rodriguez, the Sixth Circuit has twice struck down above-Guidelines sentences as substantively unreasonable, each time over a vigorous dissent.  In United States v. Lee, the court held that a sentence of 60 months for possession of a stolen firearm, when the Guidelines range was 30 to 37 months’ imprisonment, was “far too long for his offense of conviction” and that the sentencing court “placed too much weight on Lee's criminal history, and not enough weight on the need to treat like defendants alike.”  __ F.3d __, 2020 WL 5269820 (6th Cir. Sept. 4, 2020). Then, in United States v. Brown, relying on Perez-Rodriguez and the unpublished 2-1 decision in United States v. Warren, 771 F. App’x 637 (6th Cir. 2019), the Sixth Circuit again held that an above-Guidelines sentence of 60 months for distributing heroin was substantively unreasonable because this was a “mine-run case” and the upward variance from the Guidelines range of 24 to 30 months would create “unwarranted sentencing disparities.” __ F. App’x __, 2020 WL 5569677 (6th Cir. Sept. 17, 2020).         

It’s hard to say whether this recent spate of substantive reasonableness reversals reflects an increasing recognition by (some) federal appellate judges of the realities of mass incarceration and overly harsh sentences, or simply a lucky streak by defendants.  Cutting in favor of the latter interpretation is that both Brown and Perez-Rodriguez are sentencing appeals from the same district judge — as was Warren — and that in each instance the sentencing judge upwardly varied even though the Government sought a Guidelines sentence.  These reversals may, then, simply reflect an attempt by appellate judges to rein in a particularly punitive district judge.  But I tend to think that this string of cases reflects an attempt to give some substance to substantive reasonableness review, and to use it as a tool to curb at least the most egregiously punitive sentences.  

Though the Sixth Circuit’s newfound willingness to find upward variances unreasonable in cases that fall within the heartland of the Guidelines is encouraging, it nonetheless is worth considering the limitations of this approach.  To begin with, it implicitly accepts that the Guidelines are the starting point for reasonableness review.  This is perhaps a natural outgrowth of the appellate presumption of reasonableness that the Sixth Circuit (and some but not all other circuits) afford to within-Guidelines sentences.  But it risks blunting the impact of Booker and Gall, which held that district courts must start by calculating the Guidelines range but then must proceed to give the sentence required by the factors enumerated in 18 U.S.C. § 3553(a), regardless of what the Guidelines may advise.  Accordingly, in certain districts such as the Southern and Eastern Districts of New York, only a quarter of sentences have been within-Guidelines in recent years.  In the view of many district judges, it seems, the proper sentence for a “mine-run case” is a below-Guidelines one. 

Indeed, anyone with a working knowledge of the Sentencing Guidelines — or any regular reader of this blog — is likely familiar with just how harsh the Guidelines can be.  Yet the approach of Perez-Rodriguez requires only that above-Guidelines sentences provide sufficient justification; it offers no path to challenging harsh but below- or within-Guidelines sentences.  A more robust appellate review of the reasonableness of above-Guidelines sentences is certainly welcome, but it is not by itself a panacea for the ills of mass incarceration. 

I am always grateful for (and eager to post) any and all caselaw reviews, so I thank this author and encourage others to help me track and report on lower court sentencing developments like this one.

September 20, 2020 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Due Process in a Fee-Driven State"

The title of this post is the title of this notable new article now available via SSRN authored by Penny White and Glenn Harlan Reynolds.  Here is its abstract:

Inspired by the Justice Department's report on criminal law enforcement and the use of courts as a revenue-generation machine in Ferguson, Missouri, we address the widespread problem of policing for profit in light of two classic Supreme Court cases on due process, and two very recent Court of Appeals cases that focus specifically on the due process implications of a justice system dependent for funding on those people it "serves."  We argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights. 

In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system — and, indeed, the entire law enforcement apparatus — depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and resulting in a fundamentally unfair system.  We then offer a number of solutions, and find Supreme Court support for our approach in a surprising place.

September 20, 2020 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, September 19, 2020

Noting encouraging new federal compassionate release realities

I am pleased to see this CBS News new article headlined "Compassionate release, once seldom used, offers some federal inmates hope."  Here are excerpts:

[C]ompassionate release [was] a once seldom used remedy that allows inmates to receive a reduction in their sentence. The process, which is only used in extraordinary circumstances, has seen an uptick during the coronavirus pandemic....

Petitions for compassionate release were rarely approved prior to the passing of the First Step Act in December 2018, which created a procedural change, making it easier for offenders and their families to bring their request to the court.

There were 145 offenders released in 2019 — about five times more than the year before, when 24 people were granted release, according to a report by the U.S. Sentencing Commission.  On average, the sentences were reduced by 84 months last year, compared to 68 months the year before.  Two-thirds of those who successfully obtained release did so by filing requests through the court, rather than going through the Bureau of Prisons, the report found.

The bureau, in a statement, said it has no direct authority to reduce an inmate's sentence, but rather, a director determines if an inmate is eligible and submits a request to the prosecuting U.S. Attorney's Office to file a motion on behalf of the director.  "Inmates who are found to be ineligible under agency criteria, or who are determined to be inappropriate for agency approval of a reduction in (a) sentence may file a motion themselves directly to the sentencing court per the First Step Act," the statement said.

So far, nearly 1,600 cases have been approved, the bureau said, meaning that in the year of the pandemic, the numbers of those being released have increased tenfold since the year before.

The virus has killed 120 federal inmates, the bureau said.  Saferia Johnson, a 36-year-old with pre-existing health conditions, died from the virus in August after her petitions for release were reportedly denied by a prison warden in Sumterville, Florida.  Johnson was serving a 46-month sentence at the Coleman Federal Correctional Complex for conspiracy to steal public money and for aggravated identity theft.  The bureau declined to comment on her case.

Compassionate release differs from home confinement, a program that Attorney General William Barr directed the Bureau of Prisons to enforce in March, just as the pandemic began to root itself inside the federal prison system.  Home confinement allows current inmates to serve out the remainder of their sentence from the comfort of their home while still remaining under correctional supervision.  The Justice Department prioritized the elderly, those at high-risk, and non-violent offenders for home confinement.  As time went on, the qualifying factors set by the bureau included those who had already served at least half of their sentence.

Since Barr issued the directive, over 7,600 inmates have been placed into home confinement.  Notable recipients include President Trump's former campaign manager, Paul Manafort, and his former personal lawyer, Michael Cohen.  However, in light of the pandemic, judges have been approving more petitions for compassionate release, and organizations like FAMM are helping spearhead the effort.

FAMM, in conjunction with other civil rights groups, created the "Compassionate Release Clearinghouse" in 2019, and has advocated for inmates who qualify for the sentence reduction under the First Step Act.  "We didn't think it was smart to keep sick and elderly people in prison before COVID-19 hit — and it seemed downright immoral to trap them there once it did," said Kevin Ring, the organization's president.

"We don't usually do direct services, but this was a humanitarian emergency.  We are grateful to the hundreds of federal defenders and volunteer attorneys — both in and outside of the Clearinghouse — who helped families get their loved ones out of harm's way."

A few prior recent posts:

September 19, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg

Justice Ruth Bader Ginsburg was nominated to be a Justice when I was still in law school, so it has been a very long time since I have thought about a Supreme Court without her voice and views being integral to the Court's work.  And, as I noted in this post last night, she was literally the critical swing vote in US v. Booker to give us the advisory guideline system that has defined the federal sentencing for over fifteen years.

Though Justice Ginsburg did not write an opinion in Booker, she wrote plenty of notable and consequential sentencing opinions for the full Court during her lengthy tenure.  Via this post, I figured I would take a few moments to note and link some sentencing highlights in the remarkable corpus of opinions authored by Justice Ginsburg during her many years on the Court:

Ring v. Arizona, 536 U.S. 584 (2002)

Cunningham v. California, 549 U.S. 270 (2007)

Kimbrough v. United States, 552 U.S. 85 (2007)

Oregon v. Ice, 555 U.S. 160 (2009)

Timbs v. Indiana, 586 U.S. ___ (2019)

By keeping this list focused opinions for the Court, I have left off many of Justice Ginsburg's notable separate opinions and on lots of other criminal law matters.  I suspect readers may recall fondly (or perhaps not so fondly) of other opinions of Justice Ginsburg not listed above, and I welcome thoughts in the comments about Justice Ginsburg's role in shaping modern criminal justice jurisprudence.

September 19, 2020 in Who Sentences | Permalink | Comments (0)

Friday, September 18, 2020

Saddened by the passing of Justice Ruth Bader Ginsburg, who gave us advisory federal sentencing guidelines

459px-Ruth_Bader_Ginsburg _SCOTUS_photo_portraitI was sad to see this news this evening:

Supreme Court Justice Ruth Bader Ginsburg, a diminutive yet towering women’s rights champion who became the court’s second female justice, died Friday at her home in Washington.  She was 87.  Ginsburg died of complications from metastatic pancreatic cancer, the court said....

Chief Justice John Roberts mourned Ginsburg’s passing.  “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague.  Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice,” Roberts said in a statement....

Her appointment by President Bill Clinton in 1993 was the first by a Democrat in 26 years.  She initially found a comfortable ideological home somewhere left of center on a conservative court dominated by Republican appointees. Her liberal voice grew stronger the longer she served....

On the court, where she was known as a facile writer, her most significant majority opinions were the 1996 ruling that ordered the Virginia Military Institute to accept women or give up its state funding, and the 2015 decision that upheld independent commissions some states use to draw congressional districts.

Besides civil rights, Ginsburg took an interest in capital punishment, voting repeatedly to limit its use.  During her tenure, the court declared it unconstitutional for states to execute the intellectually disabled and killers younger than 18. In addition, she questioned the quality of lawyers for poor accused murderers....

Ginsburg authored powerful dissents of her own in cases involving abortion, voting rights and pay discrimination against women.  She said some were aimed at swaying the opinions of her fellow judges while others were “an appeal to the intelligence of another day” in the hopes that they would provide guidance to future courts.  “Hope springs eternal,” she said in 2007, “and when I am writing a dissent, I’m always hoping for that fifth or sixth vote — even though I’m disappointed more often than not.”

She wrote memorably in 2013 that the court’s decision to cut out a key part of the federal law that had ensured the voting rights of Black people, Hispanics and other minorities was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

When I think about Justice Ginsburg's sentencing legacy, I do not think about any single opinion but rather about two notable votes. Specifically, Justice Ginsburg was the sole justice to vote with both remarkable majority opinions in US v. Booker: she was the key fifth vote for the merits opinion finding the mandatory federal guidelines unconstitutional and she was the key fifth vote for the remedial opinion making the guidelines advisory. Notably, Justice Ginsburg did not write any opinion in Booker to explain either vote, but her two votes gave us the advisory guideline system that has now defined the federal sentencing system for well over fifteen years.

September 18, 2020 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (5)