Sentencing Law and Policy

Making the case for expanded use of home confinement for older federal prisoners

Hugh Hurwitz, who served as Acting Director of the federal Bureau of Prisons, has this new commentary in The Hill headlined "Moving elderly prisoners home saves taxpayer dollars without sacrificing safety." I recommend the full piece (and its many links), and here are excerpts:

The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders.  This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.

Well-established research shows that older people are substantially less likely to recidivate.  In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50.  Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.

At the same time, the cost of housing older people is becoming astronomical.  The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade.  Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase....

Since the First Step Act was established, very few have been placed into this pilot program.  The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January.  Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.

In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement.  This pilot program has not been given a chance to see if it works.  It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people.  Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent....

The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further.  This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence.  This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.

During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence.  Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense.  That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes.  Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.

"Fact-Finder Choice in Felony Courts"

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

Scholarship in criminal adjudication is preoccupied with plea-bargaining and jury trials, but has largely ignored bench trials.  Yet bench trials occur, and not just in misdemeanor cases.  In some jurisdictions, they are a mainstay of felony adjudication.  This Article offers the first systematic collection and reporting of bench trial prevalence in felony cases across the nation’s largest jurisdictions, and the first qualitative study of the factors influencing jury trial waiver.  It reveals bench trial prevalence to be highly variable across jurisdictions, including those within the same state.

Qualitative study of five jurisdictions with varying bench trial prevalence shows what underlies that variability: ingrained institutional structures of fact-finder choice produced through the repeated interactions and interdependencies of the courthouse’s community of professionals (judges, prosecutors, and defense attorneys). Though the jury trial right rests, in theory, with the defendant, these institutional structures shape the degree of defense agency in exercising it.  This study illuminates the jury trial right’s meaning on the ground, reveals the influential and under-noticed role of trial judges in a pivotal defense decision, and identifies questions for future research. More broadly, it offers a new vantage point for perennial inquiries in criminal law and procedure: what confers power in the criminal process, and how is power distributed?

Prison Policy Initiative provide updated data on "incarceration stats by race, ethnicity, and gender" in all states

Prison Policy Initiative has this new briefing by Leah Wang fully titled "Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.: New data visualizations and updated tables show the national landscape of persistent racial disparity in state prisons and local jails."  here is how the briefing begins (with links from the original):

The best and latest criminal legal system data are often scattered across different government agencies, in incompatible formats, and difficult to compare.  To make the most useful information more accessible, we make the underlying data for our timely reports and briefings available in our Data Toolbox, and create state-specific graphics on our comprehensive State Profiles pages.  Today, we’ve added a rich new series of resources for our users of our work:

First, we now have a downloadable spreadsheet of the most recently available incarceration data for people in state prisons and in local jails, by race and ethnicity and by sex, for all 50 states and D.C.  Unlike other datasets, ours provides apples-to-apples state comparisons in three formats (counts, rates, and percentages): We’ve done the math to standardize incompatible measurements found in the various original data sources.

Second, we’ve updated over 100 of the key graphics on our State Profiles pages showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compare to the total state population.

Rounding up some recent reads on the politics of crime and punishment before second GOP debate

Tonight brings the second official GOP Prez candidate debate for the 2024 election, and perhaps because this debate is in California we might hear a little more discussion of crime and punishment issues.   Former Prez Trump has again deciding not to show up for this debate, but I continue to hope we might get a question focused on his signature criminal justice reform achievement, the First Step Act (such as the one I set forth in this prior post).  Though I doubt any crime and punishment issues will get all that much attention tonight (save perhaps immigration), I noticed a number of notable recent press pieces and commentaries about various aspects of the politics of crime and punishment these days:

From The Hill, "Progressive purity on crime is coming at the expense of public safety"

From the New York Times, "The Libertarian vs. Conservative Impulses in G.O.P. Policy on Crime"

From the Sacramento Bee, "Why do Democrats in blue California struggle to reform prisons, sentencing and police?"

From USA Today, "On criminal justice, don't just focus on bad news. We ignore progress at our peril."

From the Vera Institute of Justice, "Polling Shows Voters Prefer Crime Prevention Over Punishment"

From the Wall Street Journal, "Mayor Eric Johnson: America’s Cities Need Republicans, and I’m Becoming One"

I sincerely believe that there are lots of serious criminal justice issues that would merit lots of serious discussion and debate through the 2024 campaign.  I am not expecting elevated discussion on these topics during a candidate debate anytime soon, but I will keep rooting for it.

Some prior related posts:

• Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act
• New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act 
• Interesting criminal justice news and notes from the GOP campaign trail
• "The First Step Act is a conservative, constructive approach to strengthening public safety"
• Canvassing GOP discussion and perspectives on criminal justice reform in run up to 2024
• Will there be any interesting or surprising crime and punishment discussion at tonight's first GOP debate?
• Wouldn't a GOP Prez candidate debate focused just on crime and criminal justice issues be worthwhile?

Notable new SCOTUS accounting of stays in capital cases over the last decade

The Supreme Court does not start hear oral arguments to officially start its new Term until next Monday, but it does have its "long conference" scheduled for today and Bloomberg Law has this interesting new piece for capital case watchers.   The piece is headlined "Death Row Inmates Find Fewer Paths to Supreme Court Reprieves," it is is worth a full read. Here are excerpts:

Richard Glossip has had his last meal three times. It may be four if the US Supreme Court doesn’t agree at its private conference Tuesday to hear the Oklahoma death row inmate’s latest appeal.

Glossip’s execution dates have been blocked nine times, most recently by the high court in May, since he was convicted in 1998 of hiring a man to kill the owner of the motel he managed.  But his case is unusual: only one other inmate has had an execution put on hold since Justice Ruth Bader Ginsburg died in September 2020, giving President Donald Trump his third appointment to cement a 6-3 conservative majority on the court.

In that time, the justices have voted nine times to let a death sentence blocked by a lower court be carried out, according to Stephen Vladeck, a University of Texas at Austin School of Law professor, who’s been tracking emergency requests to the Supreme Court since 2019.  “There’s a good bet they vacate the death sentence in Glossip, but that’s not going to be a bellwether for anything,” Vladeck said.  “You can count on one finger the number of cases in the last few years where the state has joined the prisoner in urging the court to step in.”

Bloomberg Law, in one of the first attempts to identify the outcomes of all emergency requests to stay executions, identified more than 270 in its dockets database since Jan. 1, 2013.  The justices have agreed to block an execution 11 times, according to cases identified in Bloomberg Law’s docketing system and in reporting.  And of 21 emergency requests to vacate a stay put in place by a lower court that Bloomberg Law identified, 18 were granted. That shows the court is much more likely to let executions proceed than to put them on hold.

Those findings are almost certainly undercounted due to the variable nature of death penalty court filings.  The Supreme Court doesn’t require emergency applications to be labeled as a capital case, and it doesn’t have a complete and searchable list of all historical death penalty cases.  Groups like the Death Penalty Information Center track executions but they don’t track all appeals.

The only stay of execution granted since Ginsburg’s death, other than Glossip’s, was in 2021, when the court blocked Texas from putting John Henry Ramirez to death while it considered whether he could keep fighting the state’s refusal to let his pastor pray out loud and touch him during his execution.  Ramirez ultimately won when the court backed his religious requests in a 8-1 decision. Ramirez was eventually executed in 2022 with his religious adviser in the chamber....

The court’s conservative wing has been skeptical of emergency requests in death row appeals and has accused inmates of trying to delay their execution.  When the court ruled in Bucklew v. Precythe in 2019 that the Eighth Amendment’s ban on cruel and unusual punishment doesn’t guarantee prisoners a painless death, Justice Neil Gorsuch warned courts to watch out for such attempts.  “Last-minute stays should be the extreme exception, not the norm,” he said, adding that the last-minute nature of an application that could have been brought earlier or is an applicant’s attempt at manipulation “may be grounds for denial of a stay.”

Vladeck said that blesses the practice of deciding emergency applications without resolving a prisoner’s claims, something the court’s liberal wing has often pointed to as a reason for the court to put on the brakes....

Zack Smith, a legal fellow and manager of The Heritage Foundation’s Supreme Court and Appellate Advocacy Program, pushed back on the notion that the justices are denying cases without reviewing prisoners’ claims.  Death row inmates often challenge their convictions multiple ways in both state and federal courts, he said.

“It’s important to understand how much process is involved in any of these death penalty cases,” he said. “Some take multiple trips to the Supreme Court.”  At some point, after several layers of collateral review in cases in which the individual has either pleaded guilty or been found guilty by a jury of their peers, Smith said “a judgment has to be final.”

"Forecasting US Crime Rates and the Impact of Reductions in Imprisonment: 1960-2025"

The title of this post is the title of this notable new report authored by James Austin and Richard Rosenfeld for the Harry Frank Guggenheim Foundation.  Here is how the 25-page report is introduced on the HFG Foundation website:

In the latest of a series of HFG reports forecasting crime trends at the US national level and for selective states and (forthcoming) cities, James Austin and Richard Rosenfeld again created statistical models that retroactively “predicted” property and violent crime rates for past years with great accuracy and then used these models to forecast crime trends in the near future.  This report concerns national trends, updating the authors’ national-level HFG report released in 2020, before the social and economic disruptions of the pandemic and civil unrest over police violence interrupted a 25-year declining or flat trend in violent crime.

Austin and Rosenfeld forecast very modest increases in violent crime and then a flattening trend by 2025 as well as a continuation of the longstanding decline in property crime. They also use their forecasting models to project the effect of augmenting the nation’s declining rate of imprisonment by an additional 20%. Such a policy decision, they conclude, would not lead to significantly higher crime rates.

New US Sentencing Commission report covers "Federal Escape Offenses"

The US Sentencing Commission this morning released this new 30+-page report titled simply "Federal Escape Offenses."  This USSC webpage provides a summary and key findings, and here and highlights from the highlights:

This new publication expands upon the Commission’s previous research on federal escape offenses. In this report, the Commission combines data it regularly collects with data from a special coding project to provide a deeper understanding of escape offenses and the individuals who commit those crimes.  The report provides the characteristics of individuals who commit escape offenses, then chronologically examines their criminal histories before the instant offense through their alleged criminal behavior while on escape status. Next it provides information on their subsequent sentencing.  Finally, this report examines their criminal behavior after being released into the community by the recidivism rates of a cohort of individuals released from federal custody in 2010.

• Escape offenses accounted for less than one percent (0.4%) of all federal offenses between fiscal years 2017 and 2021.

• Individuals sentenced for escape offenses had extensive and serious criminal histories....

• Most federal escapes were from non-secure custody. The majority (89.0%) of individuals escaped from a Residential Reentry Center (i.e., a halfway house)....

• Nearly all (99.2%) individuals sentenced for an escape offense received a sentence of imprisonment. The average term of imprisonment was 12 months.

• Nearly two-thirds (65.0%) of individuals sentenced for an escape offense were sentenced within the guideline range for their escape crime, compared to 40.2 percent of all other federally sentenced U.S. citizens.

• The majority (85.7%) of individuals sentenced for an escape offense and released in 2010 were rearrested during an eight-year follow-up period, which was higher than individuals sentenced for any other type of federal offense.  By comparison, one-half (49.2%) of other individuals released in 2010 were rearrested during the same time period.

  • Individuals sentenced for escape offenses were rearrested sooner after release compared to other sentenced individuals. Their median time to rearrest was ten months, compared to 19 months for the remaining 2010 cohort.

"Moral Judgments and Knowledge about Felony Murder in Colorado: An Empirical Study"

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

With funds provided by a Hughes Pilot grant, I conducted a survey of 523 Colorado residents to determine their knowledge of and moral attitudes towards the felony murder rule.  The survey showed that only a very small fraction of the participants knew that unintended killings in the course of predicate felonies was murder punishable at the time by life without the possibility of parole.  Similarly, only a very small fraction of survey participants believed that persons who committed unintended killings in the course of predicate felonies deserved a murder conviction or sentence of mandatory life without the possibility of parole.  Rather, the mean sentence that survey participants considered just for felony murder was just over six years in prison.  These results substantially undercut the two main justifications given for felony murder, namely deterrence and retribution.

As summer ends, biggest US cities all still showing significant homicide declines

Summer is now officially over, and I am pleased to see that homicide data for 2023 remains encouraging.  As readers may recall from some of my prior posts, I have been flagging AH Datalytics' collection of homicide data from police reports in nearly 100 big cities to note that, after significant increases in homicides throughout the US in 2020 and 2021, homicide declines in 2022 were continuing into the first half of 2023.  Of course, homicide declines for 2022 followed particularly high homicide rates in many locales in 2021, and we still have a way to go to get back to pre-pandemic homicide levels. Still, I continue to find the nationwide city homicide data to be encouraging, and now we have this data for almost three quarters of 2023.

Specifically, As we enter Fall 2023, according to this AH Datalytics webpage, there is now over a 12% cumulative decline in murders across the nation's largest cities.  And, as I have noted in some prior posts, the news is especially encouraging if we look at updated police reports showing 2023 homicide trends in our very biggest US cities (by population):

Chicago homicides down 14% in 2022, and down another 12% over the nine months of 2023

Houston homicides down 9% in 2022, and down another 20% over the eight months of 2023

Los Angeles homicides down 5% in 2022, and down another 25% over nine months of 2023

New York City homicides down 11% in 2022, and down another 11% over nine months of 2023

Philadelphia homicides down 8% in 2022, and down another 19% over nine months of 2023

As I have said before, these homicide data from cities are likely not fully representative of what may be going on with homicides nationwide, and homicide trends always seem to be unpredictable and data can change in lots of ways in coming months.  Still, the latest nationwide homicide data from the AH Datalytics webpage continue to reinforce my hope that the surging number of homicides in just about every part of the US through 2020 and 2021 were mostly a pandemic era phenomenon and that homicide rates may be trending back toward pre-pandemic norms. 

Still, there is clearly a very long way to go before we return to the historically low homicide (and overall crime) rates of the early 2010s.  Indeed, the recent BJS report (discussed here) delivered some sobering news about (non-homicide) violent victimization in 2022, although the Council of Criminal Justice (discussed here) had more encouraging news on violent crime in 2022 based on different metrics.  I am hoping that encouraging crime trends are real and that they persist, but time will tell.

Investigations of various prisons and jails reveal various unsettling stories

Recent days have brought a number of notable lengthy press investigations focused on a number of problems in a number of prisons and jails:

From the Atlanta Journal-Constitution, "Hundreds of GA prison employees had a lucrative side hustle: They aided prisoners’ criminal schemes"

From the Kansas City Star, "Broken Government: Why are hundreds of Missourians stuck in jail, not treated for mental health issues?"

From NPR, "1 in 4 inmate deaths happens in the same federal prison. Why?"

UPDATE:  A bit more web surfing brought a few more notable recent pieces in this genre:

From the Anchorage Daily News, "‘Like a nursing home’: The realities of Alaska’s aging inmate population; More people are living out their final years in Alaska prisons — testing the balance between prison as punishment for serious crimes and the expensive realities of caring for infirm inmates."

From The Guardian, "US prison labor is cruel and pointless legalized slavery. I know first-hand"

From Set for Sentencing (podcast), "Bureau of Prisons (BOP) Means 'Backwards on Purpose'"

Spotlighting disconcerting comments after a disconcerting crime

A regular reader suggest that I post this recent New York Post article headlined "Vegas teen told cops ‘I’ll be out in 30 days’ after he was nabbed in killing of retired police chief in hit-and-run: report."  The reader suggested this piece shows the harms of a “slap on the wrist” as sentencing policy because if "the consequences for improper actions are not significant enough, you get more of those actions." Here are excerpts:

The teen driver who allegedly mowed down a retired police chief in a fatal hit-and-run told Las Vegas police he would be back on the streets in under a month, according to a report.

Jesus Ayala is accused of driving a stolen Hyundai Elantra on Aug. 14 along with Jzamir Keys, 16, and deliberately crashing into and killing Andreas “Andy” Probst, 64, who had been riding his bike, a disturbing video showed.

Ayala, who just turned 18, was arrested hours after Probst was killed and told the police while in custody that he wouldn’t be locked up for long.

“You think this juvenile [expletive] is gonna do some [expletive]? I’ll be out in 30 days, I’ll bet you,” Ayala told the cops, according to KLAS. “It’s just ah, [expletive] ah, hit-and-run — slap on the wrist.”...

Ayala is being held at Clark County Detention Center without bail and was hit with 18 charges including murder, attempted murder and grand larceny. Ayala and Keys made their first appearances Thursday in Las Vegas Justice Court, where the teens face charges as adults....

The video allegedly recorded by Keys in August captured the moment the stolen car plowed into the back of Probst while the two teens laughed, saying, “Hit his ass.” Probst was tossed over the hood of the vehicle and left to die.

His widow, Crystal Probst, and daughter, Taylor Probst, were in court for Thursday’s hearing but left immediately afterward without speaking with reporters. Taylor Probst said on Tuesday the attack was a senseless killing caused by the effect “social media has on our youth” — not because of her father’s 35 years in law enforcement....

The death penalty will not be sought in either case because under Nevada law, they face 20 years to life in prison if they are convicted before they turn 18 years old.

The two teens are accused of going on a crime spree throughout the day on Aug. 14, as they allegedly hit a 72-year-old bicyclist while in a stolen Hyundai sedan, drove away, crashed into a Toyota Corolla and again drove away before striking Probst. They later apparently stole two more cars before crashing them into each other.

Many notable new reads at Inquest website

It has been some months since I blogged about the website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  Though I have not flagged the site in a while, regular readers likely recall prior posts spotlighting many great essays, and here is another quartet of notable new pieces:

"Exceptional Punishments: No one should be made to give up their rights in exchange for being spared from prison" by Kate Weisburd

"Our Evidence-Based Obsession: Better research won’t get us out of our crisis of mass incarceration" by Jonathan Ben Menachem

"Envisioning Futures: The art of knowing what we’re confronting and revealing who is being made invisible by the carceral state" by Maria Gaspar & Gina Dent

"Chained by Debt: Erasing court costs and fines is a relatively small change that would have an outsize impact on those harmed by mass incarceration" by Shivani Nishar & Sarah Martino

US Sentencing Commission releases latest detailed "Compassionate Release Data Report" (with first data since proposed guideline amendment)

I just noticed that the US Sentencing Commission yesterday published this updated compassionate release data report, and this latest  one provides data on sentence reduction motions through June 30, 2023.  As I have noted with a prior data report, there are lots and lots of notable data points about how and where these motions are brought and resolved throughout this data report.  Interestingly, though some cumulative data is provided at the start of this data report, the vast majority of the report just provides particulars for grants and denials of compassion release for the period from October 1, 2022, through June 30, 2023 (which comprises the first three quarters of Fiscal Year 2023 for the USSC).

Critically, near the middle of Fiscal Year 2023, the US Sentencing Commission officially voted to amend the so-called compassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprisonment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  I blogged here and here about the Commission's promulgation of its amendment of § 1B1.13 in early April 2023.  The amendment was formally submitted to Congress in late April 2023, but does not become law until November 1, 2023.  Nevertheless, this data run suggests there was a small spike in the filing and granting of sentence reduction motions in May and June 2023.  This may just be a bit of statistical noise, though I am inclined to guess that the Commission's official vote on its new guideline may have contributed somewhat to the small uptick in the number of sentence reduction motions filed and granted.

"Fixing Disparate Prosecution"

The title of this post is the title of this notable new article authored by Shima Baradaran Baughman and Jensen Lillquist now available via SSRN. Here is its abstract

America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some U.S. states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance and are told to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But there is no solicitude for individuals who are subject to the whims of an individual prosecutor who might decide to throw the book at an individual rather than exercise mercy and drop charges for a minor first-time offense.

Both normative and structural changes are needed.  But proposed normative changes — such as progressive prosecution or evidence-driven prosecution — rely on prosecutors themselves to change and lack any enforcement mechanism. Likewise, proposed structural reforms are often too unrealistic to seriously contemplate. While we support these reforms rhetorically, this Article proposes a much simpler, potentially more pragmatic reform. Each defendant should be legislatively provided with a private right of action against disparate prosecution. In other words, a defendant believing she has been charged or sentenced unfairly or out of step with others in a particular jurisdiction could challenge the prosecutorial action and shift the burden to the prosecutor to justify charges. This straightforward proposal could shift the balance of power and create the right incentives to force prosecutors to check their decisions, and in turn result in less draconian charging throughout the United States.

Oklahoma completes its third execution of 2023 (which is 18th in US this year)

As reported in this local article, "Convicted murderer Anthony Sanchez, 44, was put to death by lethal injection Thursday at the Oklahoma State Penitentiary in McAlester. Prison officials said the execution occurred at 10:19 a.m." Here is more:

Sanchez was convicted in 2006 of first-degree murder in the shooting death of Juli Busken, a 21-year-old dance student who had completed her courses at OU and was preparing to return to her parents' home in Arkansas and enroll in graduate school. The U.S. Supreme Court denied a last-minute petition to pause Sanchez's execution.

Authorities said Busken was raped and shot in the head after being abducted from a Norman apartment complex in 1996. Her body was later found at Lake Stanley Draper southeast of Oklahoma City.

Under state law, Sanchez had to give up a sample of his DNA when he went to prison in Oklahoma in 2002 for second-degree burglary. A DNA profile was eventually made from semen stains found on Busken's clothing. In 2004, the Oklahoma State Bureau of Investigation got a "hit" on the DNA that linked Sanchez to the Busken case.

Attorney General Gentner Drummond and his assistants told U.S. District Judge Joe Heaton in a legal brief last week that the odds that the match was a mistake were 1 in 200 trillion Caucasians, 1 in 20 quadrillion African Americans and 1 in 94 trillion Southwest Hispanics.... 'I am 100% innocent,' Anthony Sanchez wrote in letter to Oklahoma Gov. Kevin Stitt

Sanchez maintained his innocence, but he waived his clemency hearing before the Oklahoma Pardon and Parole Board. In April, the Oklahoma Court of Criminal Appeals ruled 5-0 against Sanchez, who, in a new challenge, claimed his father confessed to Busken’s murder before committing suicide last year. The OSBI concluded the father was not the killer after conducting more DNA tests in February. The OSBI did the testing after getting a sample of the father's blood from the medical examiner's office, which had investigated his death.

I note in the title of this post that this execution was the 18th in the US so far in 2023, which ties the total number of US execution for the full year of 2022. With six more serious execution dates listed by DPIC here, it seems quite possible that 2023 will have the most executions in the US since 2018.  And if a few more execution dates get added, it is still possible that there could end up more executions in 2023 than any year since 2014.

US Sentencing Commission releases FY 2023 third quarter sentencing data (and the stories of crack sentencing continues to evolve)

Earlier this week, the US Sentencing Commission released on its website its latest quarterly data report which is labelled "3rd Quarter Release, Preliminary Fiscal Year 2023 Data Through June 30, 2023."  These new data provide the latest accounting of how federal sentencing is working toward a new normal in the wake of a COVID pandemic and related evolutions in the federal criminal justice system.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be between 15,000 and 17,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 12 quarters of official USSC data (as detailed in Figures 3 and 4).  I suspect this trend is mostly a facet of the different caseload and case mixes.  In the most recent quarters, the official data show that only around 42.5% of all federal sentences are imposed "Within Guideline Range."  This number continues the modern reality that, since the pandemic hit, significantly more federal sentences are being imposed outside the guideline range (for a wide array of reasons) than are being imposed inside the calculated range.

As I have also flagged before, for anyone who has long followed federal sentencing data and debates, the USSC's latest data on drug sentencing reflected in Figures 11 and 12 should be especially striking.  These figures show, for the last three quarters, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencing caseload than powder and crack cocaine, heroin and fentanyl combined.  Moreover, the average sentence for all those meth cases is well over eight years in prison (and has been rising in recent quarters), whereas the average for all the other drug cases is around six years or lower.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentences upon, the meth defendants than anyone else. 

Especially notable is how few crack cases are being sentenced and how relatively low average crack sentences now are.  Back in FY 2008 (a little before the sentencing reforms of the Fair Sentencing Act), the USSC data showed that over 6000 crack defendants were been federally sentenced that year with an average sentence approaching 10 years in prison.  But now, with only 4.6% of the federal drug sentencing caseload involving crack cases, it seems likely that fewer than 1000 crack defendants will be sentenced in federal court in FY 2023 and in the latest quarter the average crack sentence was well under 5 years.  In other words, the crack caseload has gone down by more than 80% and the average sentence has gone done by more than 50%.  Remarkable.

"Toward a More Comprehensive Plea Bargaining Regulatory Regime"

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

America’s plea-bargaining system is famously informal.  While there is a smattering of state and federal regulation of guilty pleas, the practice of plea-bargaining itself remains almost entirely untouched by law.  Because plea bargaining is the mechanism by which the vast majority of criminal convictions are secured — upwards of 95% by most estimates — this means that almost all criminal convictions are the product of an essentially unregulated, and in many ways entirely lawless, process.  There is an increasing awareness of the harmful effects of an unregulated plea bargaining system and the ways that this lack of regulation enables highly coercive practices that effectively deprive most criminal defendants of their constitutional right to trial.  The corrosive effect of plea-bargaining’s dominance is unmistakable and the continuing lack of meaningful regulation of it threatens the basic integrity of the criminal legal system.

This Article argues that it is imperative that policymakers take this threat seriously and urges them to take steps to impose real regulation on the plea-bargaining practice.  The Article identifies several reforms that might be taken.  These include requiring all plea offers to be in writing and filed in court, standardizing the timing and content of plea agreements, limiting the kinds of rights that criminal defendants can be required to waive in order to obtain a plea agreement, and shifting sentencing hearings from post-trial to pre-trial to ensure that defendants are aware of the consequences of their plea decisions.  The filing requirement would also facilitate creation of meaningful mechanisms to regulate the magnitude of the sentencing differential between plea and trial sentences.  This latter goal is critical to ameliorate the highly coercive aspects of present plea bargain practice, since more than any other factor it is the threat of heavy trial penalties that undermine the value of a defendant’s constitutional right to trial.  Implementation of these reforms would go a long way toward bringing much needed procedural formality to the informal practice of plea bargaining and would help establish a more rational regulatory system of plea bargaining practice.  It is also hoped that these reforms might help reverse the longstanding trend toward ever more vanishing criminal trials.

Notable debate among Sixth Circuit judges as court turns down en banc review of "resentencing retroactivity" after FIRST STEP Act

Hard-core sentencing fans may want to check out the opinions authored by a trio of Sixth Circuit judges concurring and dissenting from the denial of en banc review US v. Carpenter, in No. 22-1198 (6th Cir. Sept. 18, 2023) (available here) (en banc review denial).  In this case, the circuit panel held earlier this year that the defendant could not benefit at a resentencing from the FIRST STEP Act's reduction in the severity of stacked 924(c) gun mandatory minimums because he original sentencing pre-dated passage of the FSA.   

A petition for rehearing en banc followed (and I noticed SCOTUS advocate of great renown, Jeff Fisher, listed as one of the lawyers on the petiton).  The petition then was circulated to the full court, but less than a majority of the judges voted in favor of rehearing en banc.  Judge Kethledge (joined by a few judges) authored a concurrence in the denial of rehearing en banc.  In that opinion, he explains why he thinks the panel reached the right result under applicable law even though "Carpenter’s sentence was extreme by any measure" and even though "the sentence here would never have been imposed" absent the old pre-FSA mandatory minimums.

Judge Griffin (joined by a few judges) authored a substantive dissent which helps explain the particulars in this opening paragraph:

This appeal arises under the First Step Act, which amended several criminal statutes and reduced mandatory-minimum sentences for certain federal crimes.  For defendant Timothy Carpenter, the Act, if applied, “would reduce his mandatory-minimum sentence on his [18 U.S.C.] § 924(c) convictions by 80 years (from 105 years to 25).” United States v. Carpenter, 2023 WL 3200321, at *1 (6th Cir. May 2, 2023).  But despite the Act’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite the vacatur of Carpenter’s earlier, invalid, pre-Act sentence, the panel here — following circuit precedent — concluded Carpenter must now be resentenced under the old version of the statute with its outdated sentencing scheme. Id. at *2 (citing United States v. Jackson, 995 F.3d 522, 524–25 (6th Cir. 2021)).  In my view, Jackson was wrongly decided, and this case involves a question of exceptional importance.  Accordingly, I respectfully dissent from the denial of the petition for rehearing en banc.

Judge Bloomekatz (joined by a few judges) dissents to add even more context that, perhaps, is an effort to get at least one Justice's attention. Here is her closing substantive paragraph:

The real human costs that this esoteric legal issue presents also should not be overlooked.  Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.  Carpenter proves this point.  His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. See Dissent at 7.   The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court.  Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.  See United States v. Uriate, 975 F.3d 596, 606–09 (7th Cir. 2020) (en banc) (Barrett, J., dissenting).

Couple of final notes of possible interest: (1) I am pretty sure the Timothy Carpenter of this case is the same guy who got the Supreme Court to review his Fourth Amendment claim back in 2018 in Carpenter v. US; (2) I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the "unusually long sentences" criteria in the US Sentencing Commission's proposed new “Compassionate Release” policy statement.

Reminder of Call for Papers for "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

Especially because the dates for the symposium have shifted (but not the call for papers), I wanted to highlight anew the call for papers relating to an exciting event I am helping to plan, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio. The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

Background

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years.  Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

"Look Forward, Not Back: A Perspective on Defense Lawyering in the United States"

The title of this post is the title of this book chapter authored by Charles Weisselberg and recently posted to SSRN. Here is its abstract:

The United States has 52 criminal legal systems, not just one.  Each of the states has its own, in addition to the federal government and the District of Columbia.  Despite sharing the same basic structure, there are significant differences in practices, procedures, and funding between these systems, and even within them.  Given this variance, it is tempting to look to constitutional principles — which apply nationwide — to address poor lawyering.  The Sixth Amendment to the U.S. Constitution provides the right to counsel, which includes the right to effective assistance of counsel.  But as the chapter explains, the Constitution sets such a low bar for lawyering as to be largely irrelevant.  Our test for ineffective assistance, which looks backward and examines counsel’s performance in an individual completed case, has failed to instill professional standards and lift up the quality of defense practice.

If lawyering is to improve in the US, we must look forward, not back.  With the lack of a meaningful Constitutional standard, we need to create structures that incentivize quality lawyering, especially for indigent criminal defendants.  The chapter describes several models of service delivery, including public defender offices, contracts for services, and appointments in individual cases.  As it turns out, public defender offices generally provide better outcomes for their clients, and can also raise the level of practice within a jurisdiction, including among private lawyers. The chapter concludes that the US should move toward this model through legislative and administrative advocacy, jurisdiction-by-jurisdiction.

Effective coverage of particulars of First Step Act and guideline amendment implementation

I have frequently flagged Walter Pavlo's work at Forbes because he always effectively covers lots of the important nitty-gritty in the implementation of various federal sentencing and corrections rules and policy.  And over the past week, he has two more important pieces in this space, which I will cover with links and full headlines:

"What The US Sentencing Commission’s Decision Means For First Time Offenders: The US Sentencing Commission recently passed a motion to allow a 2 point reduction against the Federal Sentencing Guidelines. The effect could mean freedom for many."

"Bureau Of Prisons’ Challenges With First Step Act Release Dates: The Federal Bureau of Prisons has struggled to implement the First Step Act and one big problem still persists ... predicting when someone will leave prison."

Both of these pieces serve as new reminders of the old aphorism, "The devil is in the details."

US Pardon Attorney event: "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency"

I am pleased to see (and promote) a notable event scheduled for this Friday at 10am (September 22, 2023) by the Office of the US Pardon Attorney.  This event is called "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency," and it is described on this event page this way:

Join the Office of the Pardon Attorney for this special event addressing the collateral consequences of incarceration and the role of record-clearing and clemency. Associate Attorney General Vanita Gupta will provide opening remarks, followed by a panel discussion featuring the following justice-impacted advocates and experts:

• Ames Grawert, Brennan Center for Justice
• Sheena Meade, The Clean Slate Initiative
• Amy Ralston Povah, Can-Do Clemency
• Robert Richardson, Clemency Recipient & Author
• Tony Lewis, Jr. Activist & Author

This even will be livestreamed at this link.

Notable Ninth Circuit amicus brief making originalist case that jury trial right attaches to revocation of federal supervised release

I have noted in this prior post Professor Jacob Schuman work on the law of revocation at the Founding.  Now appearing on SSRN is this Brief of Criminal Law Scholars seeking to operationalize this work as Amici Curiae in Support of Appellant Seeking Reversal in US v. Bowers (9th Cir.).  Here is how the brief is described via the SSRN abstract:

This brief of criminal law scholars as amici curiae explains why the original understanding of the jury right requires a jury trial for revocation of supervised release.

The Supreme Court interprets the Fifth and Sixth Amendment jury right based on “the historical role of the jury at common law ... in the colonies and during the founding era.” Southern Union Co. v. United States, 567 U.S. 343, 353 (2012).  In United States v. Haymond, 139 S. Ct. 2369 (2019), the Court split 4-1-4 on whether a five-year mandatory-minimum sentence imposed upon revocation of supervised release violated the jury right.  In his dissenting opinion, Justice Alito identified “forfeiture” of a “recognizance” as the closest Founding Era equivalent to revocation of supervised release, but said he could find “no evidence” that forfeiture proceedings required a jury trial.

Justice Alito was half-right. When the Constitution was ratified, forfeiture of a recognizance was the closest equivalent to revocation of supervised release.  However, there is also abundant evidence that recognizance forfeitures at the Founding did require a jury trial.

This jury requirement only disappeared during the 19th century due to the development of parole and probation, which changed the structure of community supervision from an additional penalty to a withheld punishment.  Because supervised release is structured as an additional penalty, not a withheld punishment, the common law at the time the Constitution was ratified would require a jury trial for revocation of supervised release, even if not for revocation of parole or probation.  Revoking supervised release based on judge-found facts therefore violates the original understanding of the right to a jury trial.

Wouldn't a GOP Prez candidate debate focused just on crime and criminal justice issues be worthwhile?

Though we are still more than a week away from the next scheduled Republican primary debate, this new DC Journal piece by Jason Pye got me thinking about the question in the title of this post.  Pye's commentary piece is headlined "GOP Candidates Mum on Criminal Justice Reform," and here are some excerpts:

Americans deserve a presidential race based on substantive ideas.  The United States faces real challenges, and they’re often not the ones on which the conservative base of the Republican Party is focused.  Unfortunately, most Republican presidential candidates are resorting to reactionary rhetoric rather than offering viable solutions to complex policy issues.  One of those issues is criminal justice reform.

Only Sen. Tim Scott of South Carolina has emphasized his bipartisan work on criminal justice reform and defended the First Step Act on the campaign trail.  Chris Christie also has an excellent record on the issue, going back to his time as New Jersey governor.

Other Republicans in the field, though, leave a lot to be desired.  Some are entirely missing in action on the subject. Others are employing “tough on crime” rhetoric that comes with a hefty price tag and does little to reduce recidivism.  Gov. Ron DeSantis of Florida voted for the FSA when it came through the House in May 2018 and signed the Florida First Step Act into state law, but he’s now in a race to the bottom on criminal justice.  Taxpayers deserve better, especially when large budget deficits are a concern in Congress....

The early results of the FSA show the law is accomplishing its goal of lower recidivism rates....  Communities and taxpayers benefit when lawmakers adopt laws that reduce recidivism but demand accountability.  Presidential hopefuls must expand the FSA and move it into new policy areas.  Some bills have already been introduced that each presidential candidate could say they would support.

The EQUAL Act would eliminate the sentencing disparity between crack cocaine and powdered cocaine.  It’s supported by the National District Attorneys Association and the Major Cities Chiefs Association.  The Kenneth P. Thompson Begin Again Act would allow for the expungement of simple drug possession offenses.  That’s supported by the Major Cities Chiefs Association, the National District Attorneys Association, and the Fraternal Order of Police.  These are only a couple of examples.  Other bills, like the Clean Slate Act and the Fresh Start Act, are worthy of support.

Notably, the next GOP debate is scheduled to take place at the Ronald Reagan Presidential Foundation & Institute.  Prez Reagan was the responsible for signing the Sentencing Reform Act of 1984 into law, though in 2005 the mandatory sentencing guideline system of the SRA became advisory via the SCOTUS ruling in Booker.  Coincidentally, The next presidential inauguration will take place just days after the advisory-guidelines Booker ruling marks a full 20 years in operation! If we had a GOP Prez candidate debate focused just on crime and criminal justice, perhaps we could probe if any of the candidates would favor statutory reforms that would make the federal sentencing guidelines mandatory again (which would, along the way, eliminate any acquitted conduct guideline enhancement).

Sadly, I do not expect to see a GOP Prez candidate debate focused just on crime and criminal justice issues anytime soon.  But I still can hope and dream for at least one pointed question on this topic, such as this one I set out before the last debate:

President Donald Trump helped push the sweeping federal criminal justice reform, the First Step Act, through a GOP-controlled Congress in 2018.  In part because of that legislation (as well as pandemic developments that led to Trump's Justice Department placing thousand more defendants on home confinement), the federal prison population decreased almost 20%, dropping from about 190,000 total federal inmates in January 2017 to just over 150,000 in January 2021.  With the benefit of hindsight, do you view these laws and related developments to be a part of President Trump's record that he should be especially proud of, or do you view this part of his record as one you would be eager to reverse?

Some prior related posts:

• Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act
• New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act 
• Interesting criminal justice news and notes from the GOP campaign trail
• The First Step Act is a conservative, constructive approach to strengthening public safety"
• Canvassing GOP discussion and perspectives on criminal justice reform in run up to 2024
• Will there be any interesting or surprising crime and punishment discussion at tonight's first GOP debate?

"The COVID-19 Pandemic, Prison Downsizing, and Crime Trends"

The title of this post is the title of this article recently published in the Journal of Contemporary Criminal Justice and authored by Charis Kubrin and Bradley Bartos.  Here is its abstract:

California has fundamentally reformed its criminal justice system.  Since 2011, the state passed several reforms which reduced its massive prison population. Importantly, this decarceration has not harmed public safety as research finds these measures had no impact on violent crime and only marginal impacts on property crime statewide.  The COVID-19 pandemic furthered the state’s trend in decarceration, as California reduced prison and jail populations to slow the spread of the virus.  In fact, in terms of month-to-month proportionate changes in the state correctional population, California’s efforts to reduce overcrowding as a means to limit the spread of COVID-19 reduced the correctional population more severely and abruptly than any of the state’s decarceration reforms.  Although research suggests the criminal justice reforms did not threaten public safety, there is reason to suspect COVID-mitigation releases did.  How are COVID-19 jail downsizing measures and crime trends related in California, if at all?  We address this question in the current study.  We employ a synthetic control group design to estimate the impact of jail decarceration intended to mitigate COVID-19 spread on crime in California’s 58 counties.  Adapting the traditional method to account for the “fuzzy-ness” of the intervention, we utilize natural variation among counties to isolate decarceration’s impact on crime from various other shocks affecting California as a whole.  Findings do not suggest a consistent relationship between COVID-19 jail decarceration and violent or property crime at the county level.

Tenth Circuit panel rejects new challenge to federal felon-in-possession gun prohibition after Bruen

The Tenth Circuit handed down a panel ruling on Friday in Vincent v. Garland, No. 21-4121 (10th Cir. Sept. 15, 2023) (available here), which deepens the still-developing divides surrounding federal criminal gun prohibitions after the Supreme Court's Bruen ruling last year.  Here is how the court's opinion in Vincent starts:

Roughly 50 years ago, Congress banned the possession of firearms by convicted felons.  Gun Control Act of 1968, § 922(h)(1), Pub. L. No. 90 618, 82 Stat. 1213, 1220 (codified as amended at 18 U.S.C. § 922(g)(1)).  After Congress enacted this ban, the Supreme Court held that the Second Amendment guarantees a personal right to possess firearms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008).  Based on the Court’s language, we upheld the constitutionality of the ban on convicted felons’ possession of firearms.  United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).

The Supreme Court has recently created a new test for the scope of the right to possess firearms.  N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2129–30 (2022).  Based on the Supreme Court’s creation of a new test, the plaintiff challenges the constitutionality of the ban when applied to individuals convicted of nonviolent felonies.  To resolve this challenge, we must consider whether the Supreme Court’s new test overruled our precedent.  We conclude that our precedent has not been overruled.

A few (of many) prior recent related posts:

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition 
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender 
• Bruen brouhahas: split Seventh Circuit panel remands for "Ph.D.-level historical inquiry" on felon in possession
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution 

"Forbidden Purposes"

The title of this post is the title of this new piece authored by Raff Donelson now available via SSRN.  Here is its abstract:

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons.  For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and to remove them from public space.  These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions.  But, supposing the extraordinary evidence could be adduced, what difference would it make in a court of law?

While most can agree that officials act wrongly if motivated by these concerns, it is less clear whether such officials act illegally.  Does constitutional law disclose any legal ground for opposing action taken for these nefarious purposes? This Essay outlines a strategy that courts might adopt for finding that some governmental purposes are, constitutionally speaking, forbidden purposes.  Purpose-based arguments for invalidating government action are not entirely new.  Rational basis review, familiar from the Equal Protection and Substantive Due Process contexts, sometimes requires courts to determine whether governmental action advances legitimate purposes.  However, such scrutiny lacks general elucidation, and few have endeavored to elaborate how this would work specifically in the criminal sphere.  This Article is a first attempt to develop a method for distinguishing the legitimate from the forbidden purposes in criminal law and beyond.

On the proposed framework, courts would consider the constitutive rules of liberal legal systems, that is, those rules that both define and govern liberal legal systems.  The set of constitutive rules will limit the state’s pursuit of certain aims, and those foreclosed options are, on the proposed framework, forbidden purposes under rationality review.

US Senate leaders reintroduce "Prohibiting Punishment of Acquitted Conduct Act"

I was pleased to see this new press release from the office of US Senator Charles Grassley reporting on a new effort to address federal acquitted conduct sentencing issues through statutory reform.  Here are excerpts from the release:

Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-IL), former and current chairman, respectively, of the Senate Judiciary Committee, reintroduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. This bipartisan, bicameral legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. Reps. Steve Cohen (D-Tenn.) and Kelly Armstrong (R-N.D.) introduced companion legislation in the House of Representatives.

“There’s no sense in punishing defendants for conduct they’ve already been acquitted for.” Grassley said. “Not only have three Supreme Court Justices agreed this practice is unconstitutional, but it also undermines a bedrock principle of American criminal justice: ‘innocent until proven guilty.’ Our bill seeks to permanently prohibit courts from considering past acquittals in new cases.”

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt. However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants based on acquitted conduct. This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said. “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused. Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt. However, at sentencing, courts may enhance sentences if they find a defendant committed other crimes. This is a different and lower standard of proof, which means a sentencing court could effectively nullify a jury’s verdict by considering acquitted conduct. 

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing; and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Bill text is available HERE.

Last year in a prior Congress, the US House overwhelmingly voted, by a margin of 405-12, in support of this legislation.  But the bill never got a Senate vote in the last Congress.  Especially with SCOTUS having recently dodged consideration of this issue, I hope the current Congress might be more inclined to move forward on this front.  I am not holding my breath (or really expecting much), but I am ever hopeful.

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• US House overwhelmingly votes, by a margin of 405-12, for "Prohibiting Punishment of Acquitted Conduct Act of 2021" 
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• "Acquitted. Then Sentenced."
• A thoughtful defense of acquitted-conduct sentencing that ultimately betrays our constitutional design 

Hunter Biden formally indicted on three federal charges related to his 2018 gun purchase

As reported in this Fox News piece, "Hunter Biden was indicted Thursday on federal gun charges out of Special Counsel David Weiss' investigation." Here is more:

Biden was charged with making a false statement in the purchase of a firearm; making a false statement related to information required to be kept by a federal firearms licensed dealer; and one count of possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance....

These are the first charges Weiss has brought against the first son since being granted special counsel status.

Fox News first reported in 2021 that police had responded to an incident in 2018, when a gun owned by Hunter Biden was thrown into a trash can outside a market in Delaware....

The charges come after an original plea agreement collapsed in July. Hunter Biden was expected to plead guilty in July to two misdemeanor tax counts of willful failure to pay federal income tax as part of a plea deal to avoid jail time on a felony gun charge. Hunter Biden was forced to plead not guilty to two misdemeanor tax charges and one felony gun charge.

The full four-page indictment is available in the Fox News piece.

Prior related posts:

• Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges
• A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal
• Some reflections in headlines on Hunter Biden's "sweetheart" plea deal 
• On eve of plea hearing for Hunter Biden, House Committee Chair urges district court to consider "improper conduct" surrounding prosecution
• Not a done deal: Hunter Biden ends up pleading not guilty to federal charges after district judge raises concerns about plea deal particulars 

"Diminished criminal responsibility: A multinational comparative review"

The title of this post is the title of this notable new article from the International Journal of Law and Psychiatry authored by E. Lea Johnston, Kendall D. Runyan, Fernando José Silva and Francisco Maldonado Fuentes. Here is its abstract:

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe — Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey.  Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding.  It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility.  This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile these partial responsibility standards or to delineate their precise sentencing consequences.  It is also the only known source in English to describe Portugal's and Chile's treatment of diminished responsibility.  Providing a comparative overview of graduated responsibility in nearly twenty countries invites global discussion on whether and how society should recognize partial responsibility, as well as the punitive and therapeutic consequences that should attend this finding.

Bureau of Justice Statistics releases "Criminal Victimization, 2022"

As discussed in this press release, the Bureau of Justice Statistics this morning released a new report titled "Criminal Victimization, 2022." This full report runs 34 pages and here is how it starts and the listed "highlights" listed on the first page:

The rate of violent victimization in the United States rose to 23.5 victimizations per 1,000 persons age 12 or older in 2022, after reaching a 30-year low of 16.4–16.5 during 2020–2021. Violent victimization includes rape or sexual assault, robbery, aggravated assault, and simple assault. Despite the recent increase, the last three decades saw an overall decline in the violent victimization rate from 79.8 to 23.5 per 1,000 from 1993 to 2022.

The rate of violent victimization reported to police followed a similar pattern. This rate trended downward during the past 30 years, falling from 33.8 (1993) to 9.7 (2022) reported victimizations per 1,000 persons. However, 2022 (9.7 per 1,000) marked a rise in the rate of reported violent victimization from 2021 (7.5 per 1,000).

HIGHLIGHTS

• The violent victimization rate increased from 16.5 victimizations per 1,000 persons in 2021 to 23.5 per 1,000 in 2022.
• From 1993 to 2022, the overall rate of violent victimization declined from 79.8 to 23.5 victimizations per 1,000 persons age 12 or older.
• In 2022, about 2 in 5 (42%) violent victimizations were reported to police.
• Motor vehicle theft victimization increased from a rate of 4.3 victimizations per 1,000 households in 2021 to 5.5 per 1,000 in 2022.
• About 10% of violent victimizations involved a firearm in 2022, an increase from 2021 (7%).
• Victims received assistance from a victim service provider in 9% of violent victimizations in 2022.
• In 2022, about 1.24% (3.5 million) of persons age 12 or older nationwide experienced at least one violent crime.
• The burglary or trespassing rate was lower in 2022 (14.6 victimizations per 1,000 households) than in 2018 (21.1 per 1,000) but has been relatively flat since 2020.

Notable data from BOP Director on FIRST STEP, compassionate release and home confinement

The US Senate Judiciary Committee held a hearing today on “Oversight of the Federal Bureau of Prisons,” and BOP Director Colette Peters submitted written testimony that is available here.  Much is worth reading from that document, and I thought some of the data on "First Step Act Implementation" and on "Compassionate Release and Home Confinement" was worth blogging:

Since January 2020, more than 104,000 incarcerated individuals have actively participated in approximately 110 evidence-based recidivism-reducing (EBRR) programs and productive activities (PAs) within the Bureau. In that same timeframe, those individuals have completed more than 370,000 EBRRs and PAs.

In 2019, we adopted the new Good Conduct Time calculation required by the FSA and implemented FSA time credit provisions. Initially, implementing the FSA time credit provisions meant interim procedures with manual calculation of credits from the time the language of the final rule was approved until an automated system could be developed and tested. Then, in 2022, we transitioned from manual to automated FSA time credit calculations, streamlining and accelerating the process. In November 2022, we published the policy on FSA time credits to formalize implementation of the earned time credits rule, with subsequent revisions in February and March of 2023. This new policy was designed to streamline the calculation of credits and maximize an individual’s ability to earn and apply these credits when engaging in programming. We have also implemented revisions to our time credit calculation procedures in response to concerns of Congress and stakeholders and applied those changes for eligible individuals....

Additionally, we fine-tuned our PATTERN recidivism reduction tool worksheet by including program completion factors and sanitizing sensitive information, such as Walsh Act criteria. We made functional and technical improvements, including improving auditing capabilities and error reduction by implementing distinct ineligibility codes. We made these important changes to ensure that those in our care who are earning credits get their credits. From January 2022 through August 31, 2023, we released approximately 22,940 individuals through FSA, and approximately 16,125 were released from Residential Reentry Centers.

We support the Department’s development of the PATTERN tool (through the National Institute of Justice), including its evolution to address concerns around racial and ethnic disparities in the tool. In March 2023, the Department conducted its second annual revalidation of the PATTERN risk assessment tool. Following this, the Bureau began utilizing PATTERN version 1.3 with revised risk level categorizations. This addressed previous racial and ethnic disparities in the tool and increased opportunities for eligible individuals to apply earned time credits.

Compassionate Release. The Bureau continues in its efforts to support compassionate release, wherein the sentencing court is able to reduce a sentence due to extraordinary and compelling reasons or for certain individuals.  The FSA went into effect on December 21, 2018, and since that time, we have released a total of around 4,606 individuals who were under our care through compassionate release.  Of that group of individuals, 129 were released through compassionate release on a motion initiated by the Bureau, and 4,477 received compassionate release after a defense motion.  So far in the calendar year 2023 (CY23), approximately 216 individuals under our care have been released through compassionate release.  Of those, we initiated the motions for compassionate release for 9 of those individuals, while 207 received a compassionate release after a defense motion.  Requests for compassionate release receive close and individualized review based on extraordinary and compelling circumstances.

As part of the compassionate release review process, we collaborate closely with U.S. Attorneys’ Offices to determine if petitioning the sentencing court for compassionate release on behalf of an individual is warranted.  While we work to review and handle compassionate release requests accurately and efficiently, ultimately, compassionate release decisions rest with the sentencing courts.  We have considered and will be prepared to comply with the U.S. Sentencing Commission’s proposed amendments to compassionate release as they relate to individuals who are victims of sexual assault while in our custody, which will take effect in November 2023.

Home Confinement. To ensure public safety and effective reentry with the home confinement provision authorized under the FSA, we rely on our Residential Reentry Centers.  Those contractors work diligently to create a personalized reentry process, including individual-specific employment guidance, financial management advice, and more. This approach equips individuals with tools for a responsible and successful transition back into their communities.

During the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security (CARES) Act enabled many individuals in Bureau facilities to be placed in home confinement for health and safety. We tracked the individuals under our care whom we moved into home confinement.  From March 2020 through June 24, 2023, we transferred approximately 13,666 individuals into home confinement through the CARES Act, with the vast majority of those individuals completing their sentence in home confinement without returning to an institution.  Although the specific authority for new CARES Act home confinement placements has ended, those already placed remain in their placements.  As of August 31, 2023, approximately 3,374 individuals remain in home confinement in accordance with applicable rules.  The vast majority 9  of those placed on home confinement have complied with program rules, and less than 0.05% have been returned to custody for committing new crimes.

UPDATE: This AP article reporting on the hearing is headlined "Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency."

"Examining Underlying Reasons for Continued Public Support for Punitive Sentencing for Drug Offenses in the U.S.: Preliminary Results from Three National Experiments"

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

This grant report reports preliminary results for three experimental studies with national samples of the U.S. public that examine why many members of the public continue to support punitive approaches to the sentencing of different drug offenses.  The findings have implications for understanding and influencing U.S. public support for sentencing approaches for drug offenses, including data to suggest that many members of the public back laws and approaches that align with or may be affected by their “internal feelings,” even if such approaches may not be evidence-based.  These data can also inform the work of advocates and policymakers on how to get members of the public to “buy in” to drug sentencing reform and how to best promote public support for evidence-based sentencing laws in emerging reform efforts.

New RAND study finds public defenders overworked and proposes "new national public defense workload standards"

As reported in this Law360 article, "public defenders face extremely heavy workloads that prevent them from providing effective legal representation to people accused of crimes, according to a new study published Tuesday."  Here is more:

The National Public Defense Workload Study, which looked at the 50-year-old guidelines that are used to estimate the maximum number of cases that defense attorneys should handle, found that the commonly used standards are out of date and inapplicable today, in part because cases now tend to involve complex forensic data or technology that wasn't present before.

Despite ethics rules requiring defense lawyers to limit their workloads to a level that allows them to provide the level of legal representation guaranteed by the U.S. Constitution's Sixth Amendment, defense attorneys are being asked to juggle too much work against their will, a phenomenon that eventually causes harm to their clients, the study found....

In the study, a team of attorneys and researchers from RAND Corporation, the National Center for State Courts, the American Bar Association and the Law Office of Lawyer Hanlon, proposed a new set of standards to determine manageable workloads for public defenders.

The study's authors say the updated caseload standards reflect technological changes sweeping through the criminal defense practice — things such as social media, cell phones, surveillance cameras, and body cameras — that didn't exist decades ago. It also highlights how much more time attorneys need to devote the necessary attention to their clients' cases.

Under the currently used guidelines, created by the National Advisory Commission in 1973 and known as the NAC standards, public defense attorneys devote an average of 13.9 hours to each felony case and 5.2 hours to each misdemeanor case. That standard means that each year, on average, an attorney is expected to handle 150 felonies, or 400 misdemeanors. The typical number of yearly cases involving mental illness is 200, and the same is for juvenile cases. An attorney is expected to work on 25 appeals per year.

The new guidelines contained in the study, on the other hand, more than doubles the average number of hours to be spent on felonies, recommending that they be 35. And it more than quadruples the hours for misdemeanors to 22.3. If used as a reference in determining caseloads, the new figures would make the work of attorneys significantly more manageable, according to the study....

The study's methodic assessment of public defenders throughout the U.S. painted an even more concerning picture, according to the researchers involved in it. For example, in 2022, public defenders in rural St. Clair County, Missouri, reported a caseload of 350 felony cases per lawyer. In Luzerne County, Pennsylvania, each attorney handled more than 300 felonies per year.

The study's authors said those figures are more than double the number of cases recommended under the old guidelines, which they say are already taxing for attorneys. "Public defenders and other providers of indigent defense grapple with an overwhelming caseload that exceeds the reasonable capacity for effective representation, but the available data about the magnitude of this issue has been inadequate and outdated," ABA President Mary Smith said in a statement accompanying the release of the study.

The study took a comprehensive look at other workload studies that have been done since the NAC standards were created and focusing in particular on the period spanning from 2005 to 2022, using what is known as Delphi process, which involves analyzing a complex issue relying on a diverse cohort of experts who reach a consensus.

The full RAND study, which is titled "National Public Defense Workload Study," is available at this link.

"Intellectual Disability, Categorical Mitigation, and Punishment"

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

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others — more wrongful convictions, more pretrial detention, worse plea deals, and longer sentences.  None of which is justified under the theories of punishment.  These disparate outcomes stem from initial failures to identify that a person has intellectual disability and then misunderstandings and biases about intellectual disability.  This Article examines and analyzes how the criminal legal system treats individuals with intellectual disability, the reasons for these inequitable and negative experiences, and the theories of punishment justifying their sentences.  Drawing on this foundational analysis, this Article proposes that jurisdictions adopt a categorical rule that intellectual disability is always mitigating; and that courts, in their sentencing orders, must articulate the degree to which they find intellectual disability mitigating and why.  This rule, though, is not the ultimate goal but rather is the tool for effectuating broader change in the criminal legal system.

This Article expands upon the analysis articulated in Atkins v. Virginia, which relied on both the practical realities facing individuals with intellectual disability in the criminal legal system and the theories of punishment to categorically exempt individuals with intellectual disability from the death penalty.  By applying this same approach to non-death penalty cases involving individuals with intellectual disability, it becomes clear that a categorical rule is again necessary.  After describing the proposed categorical rule, this Article describes how the rule is situated within broader conversations about disability justice and abolition, as well as the greater implications for change in the criminal legal system — including increased identification, greater understanding across system actors, and more appropriate sentences.

CCJ publishes big new data resource, "The Footprint," which seeks to track the size of America's criminal justice system

The Council of Criminal Justice (CCJ) today published this notable new data resource titled "The Footprint: Tracking the Size of America's Criminal Justice System."  Here is how the resource introduces the data it covers on its landing page:

The overall size, or “footprint,” of the American criminal justice system remains well above historical levels, but it has shrunk substantially in recent years.  This series of interactive charts summarizes trends in crime, arrests, and correctional control (incarceration and community supervision), comparing current levels with their most recent peaks or valleys.  Time periods vary due to data availability, and where reliable data are available, trends in race and sex are also presented.

COVID-19 resulted in significant changes in crime patterns and the operations of law enforcement agencies, courts, correctional agencies, and paroling authorities.  Because of the unique influence of the pandemic across the system, analyses also examine the early effects of the pandemic on crime, arrests, and correctional control.

The first section provides a high-level overview of crime, arrest, and incarceration trends in recent decades. The following sections take a closer look at trends in each area, broken down by age, crime type, race, and sex.

The data assembled here, which provides historical national data trends based on already reported public data, are great to have in one place. Sentencing fans may be especially interested in the data trends regarding probation, parole, jails, state prisons and federal prisons, but all the data is really fascinating in all sorts of particulars.

Is "criminal justice reform" really now a "corporate priority"?

The question in the title of this post is prompted by this article in the September issue of D CEO magazine headlined "How Criminal Justice Reform Is Becoming a Corporate Priority." Here are some excerpts from an extended piece:

Research shows that 70 to 100 million Americans have a criminal record, around one in three working-age adults. Sixty percent of them are unemployed a year after leaving prison. This group is underutilized and bypassed for the millions of jobs that remain open across all industries, but the winds are shifting.

Justice-impacted individuals face several challenges to reentering the workforce and staying out of trouble. These barriers, imposed by legislation, law enforcement, employers, and society, make it more likely that they’ll run afoul of the law again. But several businesses are taking the bold step to be the leading edge of the movement to put this group of people to work....

The Responsible Business Initiative for Justice compiled data to show that justice-impacted individuals compare well to the average employee. A survey of human resource professionals and managers found that 83 percent rated the job performance of justice-impacted individuals to be as good or better than the average worker, and about three-fourths found that justice-impacted workers are as or more dependable than the average employee. Seventy percent said job retention was also better for justice-impacted individuals....

This potential labor force faces many barriers, experts say. First, employers must be willing to take a chance on justice-impacted applicants. Second, those individuals need access to various services to help them get up to speed and become stable and ready to enter the workforce. And lastly, policies need to be updated to help people transition. Success will require progress in all three areas....

Advocacy can take many forms for corporations. On one end are organizations like JPMorgan Chase & Co., whose chairman and CEO Jamie Dimon penned an op-ed in The New York Times about second-chance hiring. The financial services giant has been a leader in the space, advocating in Texas for clean slate legislation that would automatically seal criminal records where individuals had met time and good behavior requirements, so people don’t have to hire a lawyer to get it done....

JPMorgan ... is a member of the Second Chance Business Coalition, which also includes North Texas companies such as Vistra and American Airlines.  Together, they work with community partners to train and hire justice-impacted individuals and advocate for changes to laws that would help them more easily re-integrate into society. In addition to clean slate initiatives, many organizations (including the conservative-leaning Texas Public Policy Foundation) advocate for ending debt-based driver’s license restrictions....

Becoming involved with criminal justice reform looks different for every business. Some companies will have jobs that fit nearly every justice-involved individual well. In contrast, others might be limited because of size or regulatory issues that don’t allow them to hire people directly after incarceration. Connecting to an advocacy organization can help pave the way, as will speaking with peer companies and becoming more informed about opportunities.

I think this article would have be headlined more accurately if is was titled "Why Reentry Reform Should Become a Corporate Priority," since the piece is primarily making the case for why businesses should give more attention to so-called "second-chance" hiring and reentry issues.  Still, I found it notable to see this article in a Dallas business magazine, and also notable that it ends with this link to another long piece which details the "personal criminal justice reform stories of three North Texas business leaders."

Eleventh Circuit panel deepens circuit split by holding fugitive status does not serve to toll term of supervised release

LawProf Jacob Schuman made sure via this tweet that I did not forget to blog about last week's notable panel ruling in US v. Talley, No. 22-13921 (11th Cir. Sept. 7, 2023) (available here).  Here is how the unanimous ruling begins:

This appeal requires us to decide whether absconding during a term of supervised release tolls the supervised release period. James Reginald Talley, a convicted felon, appeals the district court’s judgment revoking his supervised release and ordering him imprisoned based in part on a violation committed after his supervised release had lapsed but while he was, based on the district court’s findings, a fugitive from justice.  We hold that the district court erred in tolling Talley’s period of supervised release based on his fugitive status. In doing so, we join the First Circuit and part company with the Second, Third, Fourth, and Ninth Circuits.  Accordingly, we vacate the district court’s judgment and remand for resentencing.

And here are a few paragraphs from the opinion that help highlight why it is blogworthy:

The circuits are divided over the application of “fugitive tolling” to terms of supervised release.  A majority of courts to consider the question apply the doctrine, holding that absconding from supervision equitably tolls the offender’s supervised release period during his truancy.  See United States v. Island, 916 F.3d 249, 251 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99, 108–10 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448, 455–57 (4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d 951, 952 (9th Cir. 2005). But we are convinced that the minority view is the correct one.  Accordingly, we join the First Circuit in holding that “there can be no tolling of the period of supervised release on the basis of fugitive status.” United States v. Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010); see also Island, 916 F.3d at 256–59 (Rendell, J., dissenting).

We think the First Circuit has the better position for two reasons. First, the justifications for fugitive tolling in other contexts — such as prison escapes — do not apply to the context of supervised release.  Second, the doctrine is inconsistent with the text of the statute and our caselaw interpreting that statute.

It will be interesting to see if the federal government seeks SCOTUS review of this issue.  If they do, I suspect the Court might take it up but then might just rule against the feds.  With that possible outcome, the feds might just now decide not not seek further review.  

New PPI briefing argues housing "is one of our best tools for ending mass incarceration"

Brian Nam-Sonenstein writing for the Prison Policy Initiative has this new briefing developing the case for the claim that ending homelessness can help reduce incarceration.  The briefing has this full title: "Seeking shelter from mass incarceration: Fighting criminalization with Housing First; Providing unconditional housing with embedded services can reduce chronic homelessness, reduce incarceration, and improve quality of life – especially for people experiencing substance use disorder and mental illness."  And here is how the briefing gets started (with links from the original): 

Housing is one of our best tools for ending mass incarceration. It does more than put a roof over people’s heads; housing gives people the space and stability necessary to receive care, escape crises, and improve their quality of life. For this reason, giving people housing can help interrupt a major pathway to prison created by the criminalization of mental illness, substance use disorder, and homelessness.

For this briefing, we examined over 50 studies and reports, covering decades of research on housing, health, and incarceration, to pull together the best evidence that ending housing insecurity is foundational to reducing jail and prison populations. Building on our work detailing how jails are (mis)used to manage medical and economic problems and homelessness among formerly incarcerated people, we show that taking care of this most basic need can have significant positive downstream effects for public health and safety.

"Judges on the Benchmark: Developing a Sentencing Feedback System"

The title of this post is the title of this new article just published in the Justice Quarterly online authored by Viet Nguyen and Greg Ridgeway. Here is abstract:

Judges receive limited information on how their sentencing practices contribute to inter-judge sentencing disparities which can undermine equity and the perceptions of legitimacy.  We use doubly robust, internal benchmarking to measure the effect of each judge on sentencing outcomes relative to a set of cases that are handled by the judge’s peers and that are statistically similar on all observable case features.  With the benchmarks, we can flag judges with extreme sentencing habits and link those sentencing habits with their discretionary decisions.  Judges with the highest propensity in using custodial sentences were 22 percentage points more likely to impose an incarceration sentence and 5 percentage points more likely to use a prison sentence compared to their peers’ handling of similar cases.  States can adopt this approach to provide feedback throughout a judge’s tenure to move judges that contribute most to disparities to have sentencing practices more similar to their peers.

Severe federal sentences for Proud Boys and other Jan 6 defendants generating notable commentary

The lengthy federal prison sentences recently given to Proud Boy leaders and others — eg, 22 years for Enrique Tarrio, 18 years for Ethan Nordean, 17 years for Joe Biggs — has generated a lot of intriguing commentary from a lot of intriguing sources.  Here are some pieces reporting on notable comments and some pieces that are the notable comments:

From Florida Politics, "Ron DeSantis floats ‘pardons and commutations’ after Proud Boy sentenced to 22 years"

From The Messenger, "Proud Boys to Argue ‘Trial Tax’ Was Imposed on Them After Rejecting Plea Deals"

From the National Post, "J.D. Tuccille: The injustice of jailing Jan. 6 rioters for 20 years"

From the New York Times, "DeSantis and Ramaswamy Call Proud Boys’ Sentences ‘Excessive’ and ‘Wrong’"

From Northeastern Global News, "Leaders in the Jan. 6 attack on the Capitol were sentenced to about 20 years in prison. Was that fair?"

From USA Today, "'Trial tax': Proud Boys members complain their long prison sentences punish them for demanding a trial"

From the Washington Post, "They confronted Proud Boys but don’t celebrate their prison sentences"

From WLRN, "Enrique Tarrio's mother says her son was a 'political pawn'"

Friday funnies?: Turkish court imposes sentence of 11,196 years in prison!

I surmise that any number of things associated with cryptocurrencies, including lots of numbers, are unbelievable.  But this Bloomberg story, headlined "Boss of Failed Crypto Exchange Gets 11,000-Year Sentence," has a sentencing number I could hardly believe.  Here are the details:

Faruk Fatih Ozer, who ran crypto exchange Thodex until it imploded in 2021, was sentenced to 11,196 years in prison by a Turkish court for crimes including fraud. Delivering its verdict late Thursday, the court in Istanbul sentenced Ozer and his two siblings to similar-length jail terms, finding them guilty of aggravated fraud, leading a criminal organization and money laundering.

Ozer, a high-school dropout who founded Thodex in 2017 and fled to Albania after Thodex went bust, appeared unrepentant at his final hearing. “I am smart enough to lead any institution on Earth,” state-run Anadolu Agency cited Ozer as saying in court. “That is evident in this company I established at the age of 22. I wouldn’t have acted so amateurishly if this were a criminal organization.”

The total amount of losses investors suffered when Thodex collapsed remains unclear. The prosecutor’s indictment estimates them at 356 million liras ($13 million), but Turkish media have reported figures as high as $2 billion.

I know nothing about Turkish sentencing law and practice, but I do know anyone tempted to calculate average prison terms in that country is now going to come up with a very large number.

Split Louisiana Supreme Court finds Louisiana’s prosecutor-led review statute unconstitutional under state law

Thanks to a helpful reader, I saw that the Louisiana Supreme Court today issued a notable ruling that finds unconstitutional, as a matter of state constitutional law, a state statute that allowed prosecutors to petition for review of past convictions and sentences.  The majority opinion in Louisiana v. Lee, No. 2022-KK-01827 (La. Sept. 8, 2023) (available here), gets started this way:

We granted the writ application in this case to address an issue of constitutionality: whether Article 930.10 of the Code of Criminal Procedure, which governs post-conviction plea agreements, violates the state constitution’s separation of powers provision, La. Const. art. II, § 2.  More specifically, the question presented is whether Article 930.10 permits the judicial branch to exercise the governor’s power under La. Const. art. IV, § 5(E) to pardon a final conviction.  We hold that because Article 930.10 permits a court to overturn a final conviction without a finding of legal defect pursuant to La. C.Cr.P. art. 930.3, the article unconstitutionally allows the judicial branch to exercise the governor’s exclusive pardon power, and, therefore violates the doctrine of separation of powers as found in La. Const. art. II, § 2.

Though I am not an expert on Louisiana law, the close of the majority opinion seems to suggest that prosecutor-supported motions for resentencing would be possible in some cases if tethered to another provision of Louisiana procedure:

[O]ur decision does not mandate that collateral review of criminal convictions be unnecessarily adversarial, nor does it serve as a bar to cooperation between parties in post-conviction proceedings to achieve the ends of justice.  Such a mandate would be inconsistent with Article 2 of the Code of Criminal Procedure, which instructs that the Code is “intended to provide for the just determination of criminal proceedings,” and the provisions “shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.” See also State v. Shallerhorn, 2022-1385, pp. 6–7 (La. 6/27/23), --- So.3d ---.  A court’s ruling on a collateral challenge to a final conviction may follow an adversarial hearing, an unopposed presentation by the defendant, or a joint effort by both parties to convince the court that the law and evidence support vacating the conviction.

Our decision does mandate that courts overturn a final conviction only after finding a ground for relief enumerated in La. C.Cr.P. art. 930.3.  Were a court to vacate a conviction without such a finding, as is permitted by Article 930.10, it would amount to an unconstitutional exercise of the governor’s exclusive pardon power in violation of the doctrine of separation of powers as provided in La. Const. art. II, §2.

A lengthy and short dissent followed the majority opinion, and the closing passages of the long dissent by Justice Weimer speaks to some of the broader issues implicated here:

Any concern over the court usurping the pardon power by reducing a sentence is relieved by the codal requirement that the district attorney and the defense jointly agree, and by the fact that the district court judge is given the authority thereafter to determine if the joint motion will be granted.  It goes without saying that the discretion afforded to the district court will only be exercised if the facts demonstrate that justice and the interests of the society warrant the court’s decision.

The importance of La. C.Cr.P. art. 930.10 cannot be overstated. Louisiana incarcerates more citizens per capita than any state in the Union and any nation in the world. Non-unanimous juries exacerbated the problem and increased these numbers.  It is well-documented that the poor and minorities have been disproportionally impacted by the ill-conceived practices of the past.  Perhaps as a direct consequence, Louisiana experiences a significant number of exonerations of incarcerated individuals.

The post-conviction legislation at issue here was unanimously enacted by the legislature, the people’s representatives, and signed into law by the governor.  Its obvious purpose is to insure justice is done and to act as a counter balance or check on the renegade practices and prejudices of the past.  It will only afford a postconviction remedy in those matters in which an individual is proven to be not guilty of the crime charged and is designed to right wrongs in certain specific cases.  The legislature was obviously concerned about past practices and the ineffectiveness of the poorly developed post-conviction relief procedures.  Carried to its logical conclusion, the attorney general’s effort could have the disastrous effect of undermining, and further limiting, the post-conviction relief procedure that has operated to correct the evils of the past.  Finality for finality’s sake is an important concept, but our system of justice and our sense of fairness recoil at the thought that an innocent person remains punished for a crime not committed.

The multi-step process established by Article 930.10 is replete with checks and balances, requiring opposing sides to agree.  Just as the governor is granted authority to commute sentences, the district attorney is charged with prosecuting cases and the courts are charged with deciding cases properly brought.  The attorney general is seeking to strip the district attorney and judiciary of authority to resolve injustice on a case-by-case basis.  The decision of the district attorney and defendant to bring this case to the court is not commutation from a constitutional standpoint, which is wholly within the authority of the governor, but the resolution of a case that was carefully reviewed by the district attorney.  After that careful review here, the district attorney obviously determined that it was not in society’s best interest to spend untold resources in trying this matter. Rather, exercising the prudence and discretion afforded to his office, the district attorney determined the additional facts presented by defendant here dictated the agreed-upon resolution, which the district court evaluated and granted, promoting judicial economy and saving other valuable public resources.  That is not a commutation by the governor but the resolution of a case.  Such an interpretation of Article 930.10 is reasonable and does not result in a violation of separation of powers. See LeCompte, 406 So.2d at 1311 (on reh’g).  Accordingly, I respectfully dissent from the majority’s reversal of the district court’s June 15, 2002 ruling, as I believe that La. C.Cr.P. art. 930.10 is not facially unconstitutional and is, in fact, constitutional, as applied in this case.

New CRS document explores "Supreme Court’s Narrow Construction of Federal Criminal Laws"

The Congressional Research Service has this notable new "Legal Sidebar" reviews past and recent Supreme Court rulings that limit the scope of federal criminal statutes. This six-page document gets started this way:

Criminal law marks a boundary between conduct that society deems permissible and behavior that it deems worthy of punishment.  Those who cross the line may be subject to penalty and social disapproval.  In addition to punishment, transgressors may face wide-ranging collateral consequences, among other things.

Defendants charged with criminal offenses have mounted various legal challenges to the line drawn by criminal law itself.  One category of legal challenge centers on arguments related to where or how the boundary between lawful and unlawful conduct is established.  For example, defendants have argued that certain criminal statutes are unclear and fail to give fair notice to the public as to what conduct is wrongful; that other criminal statutes improperly reach those with no awareness that they have crossed the line and thus fail to reserve criminal punishment for those who are truly culpable; and that the application of particular criminal statutes in individual circumstances strays beyond what Congress intended or clashes with countervailing constitutional values.

In recent years, the Supreme Court has issued a series of decisions agreeing with defendants that have raised each of these arguments, narrowly construing some criminal statutes in the process.  A federal appellate judge described these rulings as “nearly an annual event.”  In the Court’s latest term, the Justices again issued opinions limiting the reach of specific criminal statutes.  This Sidebar addresses this apparent Supreme Court trend, identifying the substantive reasons why the Court has limited the scope of criminal statutes and offering examples from historic and modern cases.  The discussion and examples are not comprehensive but are representative in nature.  The Sidebar also summarizes four cases from the recently concluded 2022 Supreme Court term — Counterman v. Colorado, Dubin v. United States, United States v. Hansen, and Twitter v. Taamneh — in which the Court narrowly construed the criminal laws and concepts at issue.  The Sidebar closes with considerations for Congress.

Prez Biden reportedly involved in rejecting plea deal terms for 9/11 defendants

As reported in this New York Times piece, "President Biden has rejected a list of proposed conditions sought by the five men who are accused of conspiring in the Sept. 11, 2001, terrorist attacks in exchange for pleading guilty and receiving a maximum punishment of life in prison, according to two administration officials."  Here is more about reported presidential involvement in the prosecution of notorious criminals:

An offer by military prosecutors, made in March 2022, that would spare them death sentences if they admitted to their alleged roles in the hijackings, remains on the table, officials said. But Mr. Biden’s decision to reject additional conditions lessens the likelihood of reaching such a deal....

The White House was asked to weigh in on a proposed plea agreement about a year and a half ago. In talks with prosecutors, defense lawyers said Khalid Shaikh Mohammed, the accused mastermind, and four other defendants wanted certain accommodations, including assurances they would not serve their sentences in solitary confinement and could instead continue to eat and pray communally — as they do now as detainees at Guantánamo Bay.

The prisoners also sought a civilian-run program to treat sleep disorders, brain injuries, gastrointestinal damage or other health problems they attribute to the agency’s brutal interrogation methods during their three to four years in C.I.A. custody before their transfer to Guantánamo Bay in 2006.

An agreement to meet such conditions for the detainees, potentially for the rest of their lives, carried major policy implications likely beyond the authority of a criminal court or a particular team of prosecutors.

But the White House has been leery of involvement in the case, which is politically fraught. Some relatives of the 3,000 victims want a trial with the prospect, however distant, of having the perpetrators of the worst terrorist attack on U.S. soil sentenced to death. Others oppose the death penalty on principle, have no faith in the tribunal system, or have become resigned to the idea that, because the defendants were tortured by C.I.A., capital punishment is unlikely.

More than a year passed as prosecutors awaited an answer on whether the administration would consent to the proposed conditions, referred to as joint “policy principles” in court filings. A filing on Wednesday, which came just days before the 22nd anniversary of the attacks, indicated that the administration had finally said it would not.

“The administration declines to accept the terms of the proposed joint policy principles offered by the accused in the military commissions case, United States v. Mohammed, et al,” prosecutors said in the filing, according to someone who had been shown a copy. It was not yet posted on the Pentagon’s war court website.

Mr. Biden, according to the officials familiar with the matter, adopted a recommendation by the defense secretary, Lloyd J. Austin III. The court filing does not offer a rationale for rejecting the proposed conditions, according to the officials, who spoke on the condition of anonymity to discuss the sensitive matter.

One official said Mr. Biden did not believe the proposals, as a basis for a plea deal, would be appropriate, and the other cited the egregious nature of the attacks. But Mr. Biden took no position on the general notion that a plea deal could eliminate the possibility of death sentences. At a military commission, a senior Pentagon official, called a convening authority, oversees the cases and decides such questions....

Prosecutors had been explaining the mechanics of admitting guilt in court proceedings in exchange for life sentences in meetings with small groups of family members in New York, Boston and Florida since at least May. They sent out a two-page letter to reach a wider group last month. “It cannot be overstated that a guilty plea is conclusive evidence of guilt,” it said.

The possibility of a deal stirred emotions among the relatives of the victims of the Sept. 11 attacks — both those who envisioned a trial and death sentence and those who wanted a resolution that would not face the possibility of an appeal.

"Mandatory Minimum Sentencing, Crime, and Mass Incarceration: The Case of Mississippi"

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

The high rates of incarceration and the substantial financial and societal burdens associated with them have prompted state lawmakers to undertake measures to reduce prison populations.  Mississippi, however, has taken a somewhat different approach compared to other states.  In 2014 it passed House Bill 585, which introduced "true minimums" that require both nonviolent and violent offenders to serve a minimum of 25 and 50 percent of their sentence, respectively. This distinction makes the case of Mississippi particularly interesting, providing an opportunity to examine the impact of mandatory minimum sentencing on crime and incarceration rates.  Toward this end, this study employed both difference-in-differences and synthetic control methodologies to evaluate the effectiveness of House Bill 585.  According to the findings, the initial decline in the imprisonment rate resulting from the reforms was not sustained over time.  Moreover, House Bill 585 not only failed to effectively reduce violent crimes but was also found to be associated with an increase in property crimes in Mississippi.

Council on Criminal Justice releases new policy roadmap encouraging alternatives to prosecution and incarceration for justice-involved veterans

Via email, I learned today of an exciting and impactful new report from the Council on Criminal Justice’s Veterans Justice Commission. Here are all the details and links via the text of the email:

CCJ’s Veterans Justice Commission today released a policy roadmap that encourages states and the federal government to expand alternatives to prosecution and incarceration for justice-involved veterans.
 
The policy framework outlines alternative sentencing options that not only recognize veterans’ service, but also that their criminal behavior may have been influenced by that service.  The options, which include expanded use of pretrial supervision and probation in lieu of a record of conviction or incarceration, are grounded in evidence-based practices used in problem-solving courts and community supervision.  The Commission also encouraged jurisdictions to pass laws enabling veterans whose cases are processed through such options to file for record expungement.
 
“We are prosecuting and imprisoning veterans while denying them the care and consideration they need and deserve — despite the fact that their criminal justice involvement is often due, at least in part, to their willingness to fight for their country,” Commission Chair and former U.S. Defense Secretary Chuck Hagel said.  “As a result, we are not only doing a disservice to veterans, but also jeopardizing the safety of the public they once fought to protect.”
 
Based on the policy framework, the American Legislative Exchange Council (ALEC) in August adopted as model policy the Veterans Justice Act.  This version of the framework will be shared with state legislatures as a blueprint for action on the issue.

The policy framework reflects an initial set of recommendations released by the Commission in March.  Additional recommendations targeting veterans’ transition from service to civilian life will be forthcoming early next year. In addition to Hagel, Commission members include former Defense Secretary and White House Chief of Staff Leon Panetta, a former Sergeant Major of the Marine Corps, the chief justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 
• CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing" 

"Collusive Prosecution"

The title of this post is the title of this recent article I just came across via SSRN and authored by Ben McJunkin and J.J. Prescott. Here is its abstract:

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining.  Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations.  In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification.  Both parties arguably benefit: Prosecutors can leverage collateral consequences to extract greater punishments and defendants can avoid consequences they view as particularly burdensome. But these benefits can come at a cost to others who are not at the bargaining table.

We contend that “collusive prosecution” of this sort can be pernicious, as may be the case when sex-offender registration and notification laws are in play, but it also has potential to be socially attractive.  Accordingly, we sketch a normative framework for evaluating collusive prosecution as a matter of prosecutorial ethics.  We draw on the emerging field of public fiduciary theory to characterize prosecutors’ ethical duties to varied — and often conflicting — beneficiaries.  We suggest that programmatic uses of collusive prosecution may be fair and reasonable in a common immigration context, but collusive prosecution designed to relocate sex-offense registrants likely fail these conditions. Ultimately, we offer a suite of reforms that may be useful for policing collusive prosecution without banning the practice outright.

Proud Boys leader, Enrique Tarrio, sentenced to 22 years for his role in Jan 6 activities

As reported in this Politico piece, "Enrique Tarrio, the national leader of the Proud Boys on Jan. 6, 2021, was sentenced Tuesday to 22 years in prison for masterminding a seditious conspiracy aimed at derailing the transfer of power from Donald Trump to Joe Biden."  Here is more:

The sentence, the lengthiest among hundreds arising from the Jan. 6 attack on the Capitol, is a reflection of prosecutors’ evidence that the Proud Boys, helmed by Tarrio, played the most pivotal role in stoking the violent breach of police lines and the Capitol itself. “Mr. Tarrio was the ultimate leader of that conspiracy. Mr. Tarrio was the ultimate leader, the ultimate person who organized, who was motivated by revolutionary zeal,” U.S. District Court Judge Timothy Kelly said as he handed down Tarrio’s sentence. “That conspiracy ended up with about 200 men amped up for battle encircling the Capitol.”

Hundreds of Proud Boys from across the country, vetted and assembled by Tarrio and a group of top lieutenants, became a vanguard of sorts as a mob of Trump supporters descended on the Capitol, and members of the group were involved in nearly every breach of police lines that day.  Dominic Pezzola, a New York Proud Boy who triggered the breach of the Capitol itself by smashing a Senate window with a stolen police shield, was sentenced Friday to 10 years in prison.

Tarrio, unlike most of his co-conspirators, was not at the Capitol on Jan. 6. Upon his arrival in Washington on Jan. 4, 2021, he was arrested for his role in the theft and burning of a Black Lives Matter flag from a church after an earlier pro-Trump march. Tarrio was released the next day and ordered to leave Washington D.C., so he headed with a group of allies to a hotel in Baltimore.

Prosecutors say despite his absence, he remained in touch with his men and monitored their actions on Jan. 6. And after the attack, he repeatedly celebrated the attack, defended his allies and regretted that it didn’t fully derail the transfer of power. He was convicted in May of seditious conspiracy, conspiring to obstruct Congress’ proceedings and destroying government property, among other charges.

Tarrio’s sentence closes a significant chapter in the investigation of the Jan. 6 attack. His 22-year sentence is likely to remain the lengthiest for anyone charged in connection with the attack itself — a mark that exceeds the 18-year sentences handed down to Oath Keepers founder Stewart Rhodes and Tarrio’s ally Ethan Nordean....

Kelly, a Trump appointee, appeared largely unmoved by Tarrio’s words of contrition. He emphasized that as the attack unfolded, he used his platform to tell his allies “Don’t fucking leave.” And that night, Tarrio privately told a confidant, “Make no mistake. We did this.” Despite Tarrio’s contrition, Kelly again slammed him for comparing Pezzola to George Washington. “It slanders the father of our country to speak that way,” Kelly said. The judge added that he doesn’t see evidence, despite Tarrio’s apologies, that he feels remorse for the seditious conspiracy for which he was convicted.

Notable new resource provides "Data for Defenders"

Though I am institutionally disinclined to praise anything emerging from the school up north, I am still quite pleased to highlight and compliment a new UM resource brought to my attention by Eve Brensike Primus, who is a Prof at the University of Michigan Law School and Director of the Public Defender Training Institute.  Here is the full description from an email I received earlier today:

Data for Defenders is a new database that collects briefs, motions, and transcripts focused on social science research and data helpful to public defenders. It includes information on topics like the science of eyewitness memory; problems with racism and bias in the criminal legal system; and the use of unreliable, seemingly scientific evidence.

The project is sponsored by the University of Michigan’s MDefenders program along with a number of partners — including public defender offices and organizations around the country — to ensure that the database remains relevant and up to date.  In addition to including completed briefs and motions submitted by defenders, defense experts at Michigan Law will regularly draft language for new briefs and motions, incorporating novel social science research to help defenders advocate with and for their indigent clients.

The database is organized in a user-friendly way. For every document in the database, there is a description that will pinpoint exactly which pages have the relevant information. It’s also searchable by a number of different categories — date, jurisdiction, topic, key terms.  And because it has succinct summaries, perusing the database by category can also generate ideas for defenders about different kinds of issues they can raise that they might not have thought of.

Instead of having defenders around the country waste precious time reinventing the wheel, this database will collect and share sample motions and briefs to help public defenders bring data, research, and statistics into the courtroom.  We encourage you to take a look at this new resource, use it when helpful, and contribute materials to it.  And if there are subjects that you’d like to see covered that are not currently included, feel free to send your ideas to mdefendersinfo @ umich.edu.

I noticed that two of the documents in the database are on sentencing, and I am sure there are also others that will be of interest to sentencing fans.