Thursday, October 14, 2021

Latest issue of SMU Law Review focused on criminal justice reforms

I just had a chance to notice and note here that the Summer 2021 issue of the SMU Law Review has a great bunch of articles on a great array of criminal justice topics.  Here are all the pieces in the issue, all of which are relatively short and many of which relate to sentencing issues in various ways:

Reforming State Bail Reform by Shima Baughman, Lauren Boone, and Nathan Jackson

Power and Procedure in Texas Bail-Setting by Amanda Woog and Nathan Fennell

The Reform Blindspot by Irene Oritseweyinmi Joe, Shelly Richter, and Dayja Tillman

October 14, 2021 in Recommended reading | Permalink | Comments (0)

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

  • More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
  • Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
  • Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
  • In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
  • People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
  • 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
  • In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

October 14, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, October 13, 2021

SCOTUS argument suggests Justices likely to reinstate reversed death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

When the US Supreme Court back in March decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, a smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looks even smarter after today's Supreme Court argument where the Justices questions and comments revealed the predictable ideological split and strongly suggested that a majority of Justices will be voting to reinstate Tsarnaev's death sentence.

The headlines from various press and blog coverage reports on most of the essentials:

From CNN, "Supreme Court conservatives appear ready to endorse death sentence for Boston Marathon bomber Dzhokhar Tsarnaev"

From Crime & Consequences, "SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber"

From Fox News, "Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence"

From NBC News, "Supreme Court appears likely to allow death sentence for Boston Marathon bomber"

From SCOTUSblog, "Justices appear to favor reinstating death penalty for Boston Marathon bomber"

Interestingly, the second of the two questions presented in the case captured most of the Justices' attention as they explored "Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."  Some of the questioning on this issue suggested that the Court might have to, or might want to, say something significant about the evidentiary rules that attend the penalty phase of a capital trial.  If they do speak to this issue broadly, the significance of the Tsarnaev case could extend beyond this defendant's awful crimes and ultimate punishment.

October 13, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots

Zoe Tillman at BuzzFeed News has an impressive extended report with all sorts of linked documents to chronicle pleas entered so far on federal charges stemming from the January 6 riot at the US Capitol.  This main article is fully  headlined: "100 Capitol Rioters Have Pleaded Guilty. Here’s What Their Cases Show About The Jan. 6 Investigation.  Guilty pleas are stacking up. Here’s what rioters are admitting to, and what they and the government are getting out of these deals."  Here is a snippet:

One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.

But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return.  BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to....

Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars.  Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.

Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed.  They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.

This companion article, headlined "How To Read The Capitol Riot Plea Deals: A judge accepted the 100th guilty plea in the Jan. 6 cases on Wednesday," provides a nice primer on how to understand the particulars of all the federal filings in these cases.

And, somewhat relatedly, Carissa Byrne Hessick has this effective new Lawfare piece titled "Are the Jan. 6 Plea Deals Too Lenient?".  Here is its concluding paragraph:

In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases.  Only a small fraction of those cases have resulted in guilty pleas at this point.  And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty.  All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far.  Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government.  When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.

Some of many prior related posts:

October 13, 2021 in Celebrity sentencings, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

US Sentencing Commission issues new report on "Federal Sentencing of Child Pornography: Production Offenses"

Back in June 2021, as detailed in this post, the US Sentencing Commission released this big report, running nearly 100 pages, titled "Federal Sentencing of Child Pornography: Non-Production Offenses."  A follow-up report, running "only 72 pages" was released today here under the title "Federal Sentencing of Child Pornography: Production Offenses."  This USSC website provides some "key findings" from the report, and here are some of those findings:

Prior recent related post:

US Sentencing Commission issues big new report on "Federal Sentencing of Child Pornography: Non-Production Offenses" 

October 13, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this new publication by The Sentencing Project authored by Ashley Nellis.  Here are parts of the report's overview:

This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population.  The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.  During the present era of criminal justice reform, not enough emphasis has been focused on ending racial and ethnic disparities systemwide.

Going to prison is a major life-altering event that creates obstacles to building stable lives in the community, such as gaining employment and finding stable and safe housing after release. Imprisonment also reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.

These are individual-level consequences of imprisonment but there are societal level consequences as well: high levels of imprisonment in communities cause high crime rates and neighborhood deterioration, thus fueling greater disparities.  This cycle both individually and societally is felt disproportionately by people who are Black. It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others....

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of its racist underpinnings. Immediate and focused attention on the causes and consequences of racial disparities is required in order to eliminate them.  True progress towards a racially just system requires an understanding of the variation in racial and ethnic inequities in imprisonment across states and the policies and day-to-day practices that drive these inequities.

KEY FINDINGS

  • Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.
  • Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison.  Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.
  • In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
  • Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
  • Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites.  Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

RECOMMENDATIONS

1. Eliminate mandatory sentences for all crimes.  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges.  These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

2. Require prospective and retroactive racial impact statements for all criminal statutes.  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies.  Several states have passed “racial impact statement” laws.  To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies.  The impact of racial impact laws will be modest at best if they remain only forward looking.

3. Decriminalize low-level drug offenses.  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color.  These convictions generally drive further and deeper involvement in the criminal legal system.

October 13, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Making the case for deferred federal sentencing for individuals (like corporations)

The Hill has this notable new commentary by Joel Cohen, somewhat poorly titled "Why not defer individual jail sentences?," that develops the case for allowing federal defendants facing prison time to have a presentencing period to demonstrate reform and their true character.  Here are excerpts:

[S]trictly speaking, nothing in federal criminal procedure necessarily enables an individual to have the court postpone his sentence so that the judge, if so inclined, can consider two or three more years of personal growth and “turnaround” on the part of the defendant.

Oddly, by contrast, a corporate defendant can get such a benefit.  If a prosecutor accords an indicted corporate defendant a deferred prosecution agreement, the case typically is put on hold for months, maybe a year or more, so that the corporation can show the court that it is, indeed, “cleaning up its act.”  Perhaps, ideally, during that period it has established a corporate compliance program calculated to monitor the type of misconduct that got the corporation into trouble. Under the agreement, if approved by the court, the indictment typically would be fully dismissed when the monitoring period ends.

So, why isn’t something similar available for individual defendants?  I’m not suggesting an outright dismissal of a person’s case after an agreed-upon (somewhat court-monitored) period of “good behavior.”  Instead, I’m proposing that a defendant’s sentence be postponed (at the request of, or with the consent of, the defendant), with the judge receiving periodic, informal reports about the defendant’s ongoing conduct.  During this period, the sentencing judge becomes the defendant’s “probation officer” by being able to determine whether the person is walking the straight and narrow.

Is there a better means to determine if the defendant is truly being rehabilitated?  Not only that, doesn’t it also incentivize rehabilitation when the judge will continue to maintain the gavel for use after this period of sentence postponement ends?

To be sure, some defendants will run afoul of the judge’s beneficence in having granted such a continuance.  If so, however, the judge would be positioned to remand the defendant immediately to begin his sentence.  And that sentence likely would not be particularly lenient — maybe even more harsh than it otherwise would have been.  That’s the price a person should pay if given a second chance and he blows it.

Yes, the procedure proposed here would place added duties and time burdens on judges whose calendars already are overburdened, and likely for probation officers, too, if the judge decides to direct the probation department to periodically report the defendant’s progress.  Still, wouldn’t the judges who employ this procedure be making valuable contributions to criminal justice in helping to rehabilitate defendants and lowering the need for incarceration in an overloaded federal prison system?   Most importantly, the suspense period would give the defendant every impetus to straighten up and live a law-abiding life.

Yes, in some cases it might be painful for a defendant to wait two or three years for his “day of judgment,” not knowing if he will have satisfied the judge when sentencing day finally arrives.  The ball is in his court, though. He can opt out, or never ask his lawyer to request that the judge put the case on hold....

I did not initiate this idea in my imagination. U.S. District Judge Emmet Sullivan of the District of Columbia occasionally employs this “suspense” practice in cases where it makes sense to him.  And, as I understand it, he sometimes proposes it if an informed defendant affirmatively requests it.  It seems to be working.  I suspect it probably doesn’t require the government’s consent, although obviously that would be preferable. It’s something for other judges to think about.

October 13, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, October 12, 2021

SCOTUS to hear argument over First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Yesterday, the 2021 version of the Boston Marathon took place.  Tomorrow, the Supreme Court will hear oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed  three and injured hundreds during the 2013 version of the Boston Marathon.  (I have done dozens of posts on crimes and punishments of Dzhokhar Tsarnaev, and below are a few of the most recent ones.)

There is a lot of media coverage of the case as it gets to the Justices for oral argument, and here is a sampling:

From the AP, "Marathon bomber faces revived death sentence in high court"

From Courthouse News Service, "Fate of Boston Marathon bomber faces Supreme Court reckoning"

From Reuters, "Boston Marathon bombing victims split on death penalty in Supreme Court case"

From SCOTUSblog, "Justices to consider government’s appeal to reinstate death penalty for Boston Marathon bomber"

From Time, "Boston Marathon Bomber Supreme Court Case Exposes Split Between Biden and Justice Department on Death Penalty"

From WGBH, "Will The Supreme Court Reinstate A Death Sentence For Boston Marathon Bomber?"

A few many prior recent related posts:

October 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release?

In this post two weeks ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges. The Judiciary Sentencing INformation (JSIN) data tool is described this way by the USSC:

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....
JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.

I mentioned in my prior post that JSIN seemed relatively easy to navigate and quite useful, but I also expressed concern that the JSIN tool was possibly constructed with built-in and systemic "severity biases" due to certain data choices.  I keep hoping some others might soon write about JSIN and the role it could or should play in federal sentencings, but to date I have seen no press coverage or any other commentary about JSIN.  I have heard some positive review from a few federal district judges, though that may just reflect the tendency of all thoughtful sentencing judges to find any and all additional sentencing data to be helpful to their work.

Given that well over 1000 persons are sentenced ever average week in the federal sentencing system, I am now wondering if the USSC or anyone else is collecting any data on whether and how JSIN is being used in current federal sentencings.  Are any probation offices including JSIN data in presentencing reports?  Are federal prosecutors and defense attorneys using JSIN data in sentencing briefs and arguments?  Are federal sentencing judges referencing JSIN data in their sentencing decision-making?

October 12, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Does Prez Trump's statement to clemency advocates to "get this guy home" constitute an enforceable commutation?

The question in the title of this post is the question explored in this recent lengthy Washington Post article discussing a notable new filing by lawyers representing James Rosemond.  The article is headlined "Trump granted hip-hop manager clemency but left him in prison, lawyers claim," and here are excerpts (with links to key filings):

The waning days of Donald Trump’s presidency saw a carnival of celebrities and those with personal connections to him jostling for clemency. Trump obliged many of them, granting pardons to rappers Kodak Black and Lil Wayne and longtime allies Stephen K. Bannon and Roger Stone.

And then there was James Rosemond, known as “Jimmy Henchman,” a once-major player in the hip-hop industry who represented artists such as Salt-N-Pepa, the Game, Akon and Brandy before he was condemned to nine life terms for drug trafficking and murder for hire.

For years, Rosemond’s attorneys and a cadre of celebrity advocates — including retired National Football League great Jim Brown and the actor Michael K. Williams, who died last month — had argued that Rosemond was unjustly convicted, campaigning for President Barack Obama and then Trump to grant him clemency.  Late last year, it appeared to Rosemond’s advocates that they had succeeded. 

On Dec. 18, Trump called Brown and his wife, Monique, according to legal affidavits signed by the Browns. “Let’s get this guy home for Christmas,” Trump told the staff in his office during that call, the Browns said.

By the end of the conversation, the Browns said, they had no doubt that Trump meant he was commuting Rosemond’s sentence. Rosemond’s representatives say that they were told his family should go pick him up the following week and that loved ones traveled to West Virginia to be there when he walked out of prison after a decade inside.  But he never emerged, they say.  The family returned home devastated, and Trump left office two months later.

The Browns’ affidavits are now central to a novel legal argument being advanced by Rosemond’s attorneys that speaks to the mad dash at the end of the Trump administration, when celebrity and influence injected even more uncertainty than usual into the unsettled, high-stakes law of presidential clemency.

In a petition filed Thursday afternoon in federal court in West Virginia, Rosemond’s attorneys claim that Trump’s conversation with Jim and Monique Brown constituted a public communication that he was commuting Rosemond’s sentence, which they said is all that is required to make the decision binding and irreversible.

“Rosemond is serving a sentence that no longer exists,” his attorneys write.  Though the 20-page petition cites obscure examples of informal presidential clemency decrees dating to President Abraham Lincoln’s handling of Civil War deserters, Rosemond’s attorneys acknowledge in the document that “this exact situation is unprecedented — it does not appear to have happened in the history of the United States.”

In a statement to The Washington Post, Rosemond attorney Michael Rayfield said that despite the lack of precedent, “it’s clear to me that Jimmy doesn’t belong in prison for another day.”...

Scholars of presidential clemency interviewed by The Post were split on whether Rosemond’s legal argument has merit.

Mark Osler, a professor of law at the University of St. Thomas in Minnesota who has argued for changes to the presidential clemency process, said that the argument “presents a fascinating question that hasn’t been addressed in modern times.”

“They’ve got a good point, which is that the Constitution does not set out a method to the granting of clemency,” Osler said.  While in other cases, presidents, including Trump, signed pardon warrants, “there’s no statute or constitutional provision that requires that.”

Margaret Love, who served as U.S. pardon attorney from 1990 through 1997, said that the petition, as described to her by a reporter, touches on “really interesting” questions about the legitimacy of a pardon or commutation only uttered by a president.  “I believe there’s no reason in principle that a president should have to write something down,” Love said.

But she said she believed Trump’s language, as she gleaned from the Browns’ affidavits, did not amount to a clear declaration that he was commuting Rosemond’s sentence.  “While the president indicated an intention to do the grant, it does not sound to me like he actually did the grant,” Love said.

October 12, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Rounding up some recent notable criminal justice commentary

With limited time and lots going on, a round-up of links allows me to highlight quickly some interesting recent criminal justice commentary:

From Balls and Strikes, by Josie Duffy Rice, "The Supreme Court Can't Deliver Justice for William Wooden: The Court’s preoccupation with the precise definition of “occasion” obscures a multitude of deeper failures of the criminal legal system." 

From Balls and Strikes, by Jordan Paul, "How Courts Robbed Juries of a Powerful Tool for Doing Justice: Jury nullification is a pre-colonial tool that allows jurors to send a message to the state that certain criminal prosecutions are unacceptable. But for centuries, courts have been working out to hollow that right."

From The Marshall Project, "When Mom Is In Prison — And When She Comes Home: 'Oh, Mother of Mine,' a short documentary and photography project by Anna Rawls, explores the generational impact of incarcerating mothers."

From National Review, by Kevin Williamson, "Criminal-Justice-System Error"

From Reason, by Ira Stoll, "The Varsity Blues Trial Is a Reminder of Our Corrupt Criminal Justice System: Plead guilty and get "punishments ranging from probation to nine months in prison." Insist on a trial and face decades in prison."

From The Oklahoman, by Archbishop Paul S. Coakley, "Oklahoma's rush to execute harms culture of life"

From Slate, by John Pfaff, "Why Our Fixation on the Murder Rate Is Killing Us"

October 12, 2021 in Recommended reading | Permalink | Comments (3)

Monday, October 11, 2021

Terrific review of some ugly realities of stash-house stings

I hope readers recall the series of posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  Those posts (which are linked below with a few others) provides one look at one ugly part of the drug war represented by stash-house sting.  And now Rachel Poser has this great lengthy article in the newest issue of The New Yorker discussing the stash house sting story as part of the broader realities of undercover law enforcement operations.

The article is worth a full read, and its title highlights its themes: "Stash-House Stings Carry Real Penalties for Fake Crimes; The undercover operations seem like entrapment, but their targets can receive long sentences — sometimes even harsher than those for genuine crimes."  Here is a small excerpt: 

In the past four decades, sting operations of all types have become a major part of law enforcement in the United States, and stash-house stings are perhaps the most extreme example of this trend, because of the harsh penalties they carry. They can result in longer sentences than real crimes of a similar nature....  No judge is required to sign a warrant, and law-enforcement officials do not have to provide any evidence that a person is already engaged in criminal activity before initiating an undercover investigation....

The A.T.F. claims that stash-house stings catch established crews who already have the means to commit armed robbery. “If we wanted to go out and cast a wide net, we could do one of these a week — that’s not what we want to do,” an agent said in 2014, according to the Los Angeles Times.  “This technique is designed to take trigger-pullers off the streets.” Through the years, the A.T.F. has targeted many men with long and violent criminal histories, some of whom have shown up on the day of the robbery armed with assault rifles and bulletproof vests....

Nevertheless, the agency has also ensnared low-level offenders, and even people with no criminal records.  I reviewed thousands of pages of court transcripts from more than a dozen stash-house cases and found that many of the so-called crews were haphazard groups of family members, acquaintances, or strangers thrown together at the last minute, as targets scrambled to find willing participants. Suspects in these cases frequently asked the undercover agents for help distributing cocaine or obtaining guns....

As large numbers of stash-house cases made their way to court, some judges began to voice concern about the A.T.F.’s tactics.  “In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth,” Stephen Reinhardt, a judge on the Ninth Circuit Court of Appeals, wrote in 2014, “it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them.”  But the difficulty of proving entrapment, combined with mandatory minimums for drugs, left judges little choice but to affirm the convictions.  “You guys are dragging half a million dollars through a poor neighborhood,” William Fletcher, another Ninth Circuit judge, said the same year.  “Now, the law’s the law and I’m going to follow it, but I think you guys are making a mistake.”

Some prior related posts:

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

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

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

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

October 11, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 10, 2021

Making the case for conservatives to advance criminal justice reforms

Mark Holden and Jason Pye has this new Fox News commentary headlined "Trump made conservatives criminal justice reform leaders. Here's how to keep it that way." Here are excerpts:

Since the signing of the First Step Act, the conservative movement has become a leader in criminal justice reform.  What could be more conservative than fixing the features in our justice system that promote unequal punishment, inhibit work, waste taxpayer money and law enforcement resources?

Voters, Republicans, Democrats, and independents alike, also believe in criminal justice reform and want these issues to be fixed.  A survey conducted in July by Public Opinion Strategies showed that 67 percent of Iowa voters, for example, believe that too many low-level drug offenders are in prisons.  The poll also reflected support for eliminating mandatory minimum prison sentences and having government resources focus more on treating those with addictions instead of prosecuting them....

We have found that harsher drug penalties do not deter use.  Congress imposed five- and ten-year mandatory minimum prison sentences for heroin, but the prevalence of its use is nearly identical today as it was in 1988.  These penalties have not deterred use of heroin nor expanded treatment options for those suffering from addition.  This policy choice fails to solve the root causes of substance abuse and addiction in America...

As conservatives, we must continue to establish ourselves as leaders in criminal justice reform.  It is a proven political winner, judging from President Trump`s expanded GOP coalition, especially black voters, who cited his support for criminal justice reform as a reason for their vote.  It is a proper platform to assert conservative principles.  Our system is badly broken, and we can use our values of public safety, restraining costs, small government, equality and due process to help fix it.

October 10, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative briefing highlights disproportionate role of Native peoples in US criminal justice systems

Incarceration_byrace_2019The Prison Policy Initiative has this notable new briefing authored by Leah Wang titled "The U.S. criminal justice system disproportionately hurts Native people: the data, visualized."  Here is part of its text:

This Monday is Indigenous Peoples’ Day, a holiday dedicated to Native American people, their rich histories, and their cultures. Our way of observing the holiday: sending a reminder that Native people are harmed in unique ways by the U.S. criminal justice system.  We offer a roundup of what we know about Native people (those identified by the Census Bureau as American Indian/Alaska Native) who are impacted by prisons, jails, and police, and about the persistent gaps in data collection and disaggregation that hide this layer of racial and ethnic disparity.

The U.S. incarcerates a growing number of Native people, and what little data exist show overrepresentation In 2019, the latest year for which we have data, there were over 10,000 Native people locked up in local jails.  Although this population has fluctuated over the past 10 years, the Native jail population is up a shocking 85% since 2000.  And these figures don’t even include those held in “Indian country jails,” which are located on tribal lands: The number of people in Indian country jails increased by 61% between 2000 and 2018.  Meanwhile, the total population of Native people living on tribal lands has actually decreased slightly over the same time period, leaving us to conclude that we are criminalizing Native people at ever-increasing rates.

Government data publications breaking down incarcerated populations by race or ethnicity often omit Native people, or obscure them unhelpfully in a meaningless “Other” category, perhaps because they make up a relatively small share of the total population.  The latest incarceration data, however, shows that American Indian and Alaska Native people have high rates of incarceration in both jails and prisons as compared with other racial and ethnic groups.  In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.

Native people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent.  Similarly, Native people made up about 2.3% of people on federal community supervision in mid-2018.  The reach of the federal justice system into tribal territory is complex: State law often does not apply, and many serious crimes can only be prosecuted at the federal level, where sentences can be harsher than they would be at the state level.  This confusing network of jurisdiction sweeps Native people up into federal correctional control in ways that don’t apply to other racial and ethnic groups.

Native women are particularly overrepresented in the incarcerated population: They made up 2.5% of women in prisons and jails in 2010, the most recent year for which we have this data (until the 2020 Census data is published); that year, Native women were just 0.7% of the total U.S. female population.  Their overincarceration is another maddening aspect of our nation’s contributions to human rights crises facing Native women, in addition to Missing and Murdered Indigenous Women (MMIW) and high rates of sexual and other violent victimization.

October 10, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Saturday, October 9, 2021

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”

October 9, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2)

"Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals"

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

As the COVID-19 pandemic wreaked havoc on American society in the spring of 2020, advocates for incarcerated people began sounding alarm bells alerting society to the impending devastation for incarcerated people once the coronavirus scaled the prison walls.  For too many incarcerated people, the alarms fell on deaf ears and the COVID-19 pandemic has had life-shattering consequences for thousands of individuals locked inside American prisons.  But to anyone with an understanding of the historical realities of and legal parameters around the American carceral state, the devastation came as no surprise.

Since the 1980s, America has led the world in imprisoning its own citizens, and, to many, American justice means locking human beings in overcrowded cages and throwing away the key.  This Article explores how American criminal “justice” has created a system wherein three interconnected strands of indifference render incarcerated people particularly vulnerable to devastating harms like those associated with the COVID-19 pandemic.  First, the sheer enormity of the American carceral state has led to the creation of prison bureaucracies that operate with institutional indifference to the lives of the incarcerated.  Sympathetic to the complex task of administering enormous prison systems, the federal judiciary has created a doctrine of judicial indifference to harms experienced to incarcerated people.  Finally, the Article explores how a general societal indifference to the lives of incarcerated individuals in particular and marginalized groups in general has allowed the institutional and judicial indifference to develop and proliferate.  The Article posits that the damaging consequences of the COVID-19 pandemic on the incarcerated population are directly tied to these interwoven indifferences and calls on widespread reform and decarceration to avoid future cautionary tales.

October 9, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, October 8, 2021

With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?

As reported in this Bloomberg piece, the first jury trial in the Varsity Blues prosecutions ended this afternoon: "Two parents accused of cheating to get their children into elite U.S. universities were found guilty of all charges, in the first trial stemming from a national college admissions scandal that ensnared dozens of families."  Here is more:

Former Wynn Resorts Ltd. executive Gamal Abdelaziz, 64, was convicted Friday of two counts of conspiracy by a Boston jury after prosecutors alleged he paid $300,000 in bribes to get his daughter into the University of Southern California as a purported basketball player.

Private equity investor John B. Wilson, 62, was convicted of conspiracy, bribery, fraud and filing a false tax return after prosecutors alleged he paid more than $1.2 million in bribes to get his son into the University of Southern California and his twin daughters into Stanford and Harvard as star athletes.

After a three-week trial, the jury deliberated for about 11 hours before rendering the verdict. Abdelaziz and Wilson will be sentenced in mid-February. For both men, the most serious charge carries a maximum prison sentence of 20 years.

The verdict is a victory for prosecutors who charged 57 parents, coaches and others for taking part in the alleged scheme, which involved doctoring entrance exam scores, faking athletic prowess and bribery to gain seats at universities. An FBI sting unveiled in March 2019 swept up several prominent figures, including “Desperate Housewives” star Felicity Huffman and former Pimco chief executive Douglas Hodge. The case unfolded as the nation debated questions of privilege and inequality.

Thirty-three of the parents have pleaded guilty, with prison sentences ranging from two weeks to 9 months. Former U.S. attorney for Massachusetts Andrew Lelling, who oversaw the case, said he hoped the dozens of jail sentences would deter would-be scammers. He acknowledged it wouldn’t change what he said was parents’ unhealthy obsession with colleges as brands.

During the trial, prosecutors alleged that both Abdelaziz and Wilson had worked with college counselor William “Rick” Singer, the admitted mastermind of the scheme. The U.S. said both paid Singer to guarantee a “bulletproof” way of getting their kids into elite colleges. Prosecutors called 14 witnesses and showed jurors scores of emails they said was proof both men knew and understood Singer’s plan....

The government never called Singer, who proved a problematic cooperator. He kept some of the money parents paid him, tipped some off about the investigation and erased about 1,500 text messages from his mobile phone. He made notes saying federal agents wanted him to “bend the truth” when drawing the parents out and “retrieve answers that are not accurate.” Lawyers for both defendants assailed Singer as a con man who duped them into believing their funds were legitimate donations going to schools or sports facilities....

Four more parents are due to go on trial next year. One father was pardoned by former president Donald Trump.

I have done numerous posts about some of the defendants who were among the first to plead guilty and received relatively short sentences in this high-profile college admissions scandal (some of those posts are linked below).  I have not closely followed some of the more recent sentencings, but the question in the title of this post highlights why I will have extra interest in how Abdelaziz and Wilson are treated by both the Justice Department and the sentencing judged.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.  From a quick scan, it does not appear that DOJ has sought a sentence in any of the plea cases of more than 18 months in prison; the longest imposed sentence has been nine months. 

I would guess that the DOJ sentencing recommendations for Abdelaziz and Wilson will longer than 18 months, but how much?  Does the high-profile nature of this case make it a bit less likely that DOJ will seek to go hard after these defendants, who seem like so many others save for their decision to test the government at a trial?  (The amount of money and number of kids involved in the Wilson case may the the reason DOJ will cite for a longer recommended term.)  In addition to wondering about DOJ recommendation, of course, it will be interesting to see how the sentencing judge decides to follow the requirement in 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."   It seems we have to wait until 2022 for final answers to these question, but I welcome speculation in the comments.

A few of many prior posts on other defendants in college admissions scandal:

October 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Council on Criminal Justice presents data on "Homicide Trends: What You Need to Know"

The quoted portion of the title of this post is the title of this helpful new data briefing on modern US homicide trends produced by the Council on Criminal Justice.  Here is how the presentation of data is introduced (with links from the original) along with the key six data observations:

Each fall, the Federal Bureau of Investigation aggregates and distributes annual crime data from law enforcement agencies across the country.  Many agencies now post their own weekly and monthly data online, permitting researchers, including those at the Council on Criminal Justice (CCJ), to analyze and report trends in closer to real time.

On September 27, the FBI released its year-end report for 2020.  The government’s figures largely mirrored what CCJ and Arnold Ventures reported in January based on a sample of 34 cities. Both reports, for instance, indicated that in 2020 homicide increased by nearly 30% over the year before.

This brief summarizes key takeaways based on the newly issued FBI report as well as historical and more recent data....

  1.  Violent crime, particularly homicide, increased in 2020. The increase has slowed in 2021 and levels remain below historical highs.... 
  2.  A greater share of homicides involved firearms in 2020....
  3.  The age of homicide victims and offenders remains relatively stable, although it declined slightly in 2020....
  4.  The percentage of Hispanic victims and offenders has decreased....
  5.  The homicide clearance rate declined significantly in 2020, continuing a downward trend that began in the 1970s....
  6.  The circumstances of homicides have grown increasingly unclear.

October 8, 2021 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Third Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez

As reported in this post, the Supreme Court last month stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and pray aloud in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request.

Since those posts, as noted here, Texas has been able to complete one execution; but, as noted here, another Texas inmate was able to secure an execution stay based on religion claim SCOTUS is considering in Ramirez.  And, as detailed in this new local article, headlined "Man on death row for killing pregnant Wichita Falls woman gets stay of execution," it appears another scheduled Texas execution was been delayed:

A death row prisoner convicted of murdering a pregnant Wichita Falls woman and her 7-year-old son more than 16 years ago will not be executed next week.

54-year-old Stephen Barbee was set to die next Tuesday, October 12. However, a federal court Thursday, October 7, stayed the execution after Barbee’s request that his pastor be able to touch and pray aloud with him in the death chamber had been rejected by the Texas Department of Criminal Justice.

Barbee is on death row for the suffocation deaths of 34-year-old Lisa Underwood and her son Jayden in their Fort Worth home in February, 2005.... Prosecutors said Barbee killed Underwood because he thought he was the father of Underwood’s unborn son, and he was afraid she would tell his wife.

Prior related posts:

October 8, 2021 in Death Penalty Reforms | Permalink | Comments (1)

Thursday, October 7, 2021

Still time to register for day two of "Understanding Drug Sentencing" conference

I really enjoyed the first day of the two-day conference being put on by the Drug Enforcement and Policy Center and the Academy for Justice today and tomorrow, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  With a second day still to go, folks can still register for all of of Friday events, on this Agenda page.  Here are times and titles for the three great panels scheduled for Friday, October 8: 

11am – 12:15pm:   Sentencing Criteria as Crazymaker in Drug Cases

12:20pm – 1:35pm:   Reimagining an Antiracist Approach to Drug Sentencing

1:45pm – 3pm:   What Other Alternatives? Thinking Beyond Drug Courts and Sentencing

I thought day one of the symposium was terrific, and it included the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" with former US Attorney General Eric Holder, Jr., author and advocate Piper Kerman, Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon Marbley for the Southern District of Ohio.  I am pretty sure recordings of that great discussion, as well as all the other panels, should be available online before too long.  In the meantime, Kyle Jaeger at Marijuana Moment has this new piece discussing and contextualizing former AG Holder's comments under the headlined "Former U.S. Attorney General Says U.S. Is ‘On The Path’ To Federal Marijuana Decriminalization." 

October 7, 2021 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

New California law to end mandatory minimum terms for many non-violent drug offenses

Ironically, I have been so busy this week with this on-going conference about drug sentencing, I am just now getting a chance to blog about the drug sentencing news from California discussed in this local article headlined "Gov. Newsom Signs Bill Ending Mandatory Minimum Sentences For Many Non-Violent Drug Crimes." Here are details:

Governor Gavin Newsom signed into law a bill that ends mandatory minimum sentences for non-violent drug crimes on Tuesday, giving judges more individual discretion on punishing criminals.

Senate Bill 73, authored by Senator Scott Wiener (D-San Francisco), ends the prohibition against probation and suspended sentencing for drug crimes, including possessing more than 14.25 grams of illegal drugs, agreeing to sell or transport opiates or opium derivatives, planting or cultivating peyote, some forging or altering prescription crimes, and other similar non-violent drug-related crimes.

According to SB 73, the bill would not end the ability of judges to administer mandatory minimum length jail sentences. It would also not end laws that require jail time for many other drug offenses or remove probation ineligibility for those who had previously committed drug felonies.

Senator Wiener wrote the bill earlier this year to better address drug addiction treatment and to stop mass non-violent crime imprisonments. “Our prisons and jails are filled with people, particularly from communities of color, who have committed low-level, nonviolent drug offenses and who would be much better served by non-carceral options like probation, rehabilitation and treatment,” Wiener said in a statement on Tuesday. “It’s an important measure that will help end California’s system of mass incarceration.”...

However, law enforcement groups reiterated on Tuesday and Wednesday that the removal of mandatory minimums would lead to side effects such as an increase of drug use, a rise in drug sales, and a rise in drug-related crimes.  “SB 73 sets a dangerous precedent and would jeopardize the health and safety of the communities we are sworn to protect,” said the California Police Chiefs Association in response to the signing.

October 7, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

"Criminal Justice Secrets"

The title of this post is the title of this notable new paper authored by Meghan Ryan. Here is its abstract:

The American criminal justice system is cloaked in secrecy.  The government employs covert surveillance operations.  Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence.  Juries convict defendants on secret evidence.  Jury deliberations are a black box.  And jails and prisons implement clandestine punishment practices.   Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings.   Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns.  The accumulation of secrecy and the aggregation of these concerns create a real constitutional problem.

October 7, 2021 in Procedure and Proof at Sentencing | Permalink | Comments (0)

Oregon Supreme Court rules legislative change renders prior death sentence now violates state constitution's proportionality requirements

The Oregon Supreme Court had a notable unanimous ruling today which finds a state death sentence unconstitutional in a way that, according to this press piece, could mean that many or even all those now on the state's death row will be able to get their death sentences overturned.  The ruling in Oregon v. Bartol, 368 Or 598 (Oct. 7, 2021) (available here), substantively concludes this way:

Legislative enactments are strong indicators of those standards, and the enactment of SB 1013 shows that the legislature has determined that, regardless of when it was committed, conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree” does not fall within the narrow category of crimes for which the death penalty can be imposed.  Importantly, that moral judgment stands apart from the question of retroactivity.   Although the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, the enactment of the bill itself reflects a judgment that conduct that was previously classified as “aggravated murder” does not fall within the narrow category of conduct that can be punished by death, as opposed to lesser sentences, including life imprisonment.  Consequently, maintaining defendant’s death sentence in this case would violate two special proportionality requirements that, under Article I, section 16, apply to the death penalty: the requirement that the death penalty “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution,’ ” Roper, 543 US at 568 (quoting Atkins, 536 US at 319), and the requirement that there be “a fundamental, moral distinction” between crimes that are punishable by death and those that are not, Kennedy, 554 US at 438.  Maintaining his death sentence would allow the execution of a person for conduct that the legislature has determined no longer justifies that unique and ultimate punishment, and it would allow the execution of a person for conduct that the legislature has determined is no more culpable than conduct that should not result in death.  Therefore, in light of the legislature’s enactment of SB 1013, we conclude that defendant’s sentence violates Article I, section 16.

October 7, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, October 6, 2021

Still time to register for "Understanding Drug Sentencing" conference former AG Eric Holder and Piper Kerman keynote

I first noted here the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice set for October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  On the eve of the event, folks can still register separately for each of the events on Thursday, for all Friday events, on the Agenda page

As the agenda page details, day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  The Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice will feature Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

October 6, 2021 in Drug Offense Sentencing | Permalink | Comments (2)

"Ring and Hurst Retroactivity: Deconstructing Divergent Doctrines"

The title of this post is the title of this recent article from Melanie Kalmanson and Nathan Molina available via SSRN.  Here is its abstract:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment.  While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively.  This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively.

Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points of confusion arose surrounding retroactivity: (1) Was Hurst a direct result of Ring?  If so, should it apply retroactively?  (2) What role did the Eighth Amendment play in both Ring and Hurst?  (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?  (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense?  By exploring and explaining these sources of confusion, this Article aims to help clarify the broader landscape of modern capital sentencing jurisprudence.

October 6, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Tuesday, October 5, 2021

Missouri completes execution of inmate who claimed to be intellectually disabled

As reported in this NBC News piece, "Missouri on Tuesday executed Ernest Johnson, despite claims by his attorney and death penalty opponents that he had an intellectual disability and killing him violated the Constitution." Here is more:

Johnson, 61, who was convicted in the murders of three convenience store employees almost three decades ago, was executed by lethal injection at a state prison in Bonne Terre. He was pronounced dead at 6:11 p.m. local time, a spokeswoman for the state department of corrections said.

Pope Francis, two members of Congress and former Democratic governor Bob Holden were among those who spoke out against the execution.

On Monday Gov. Mike Parson, a Republican, denied Johnson clemency and said the state would carry out the execution. The U.S. Supreme Court denied an application for a stay of execution Tuesday.

In a filing to the high court Tuesday, Johnson's legal team reiterated IQ tests have indicated he had the intellectual capacity of a child and wrote that there would be "no tangible harm" if his execution was delayed while questions over whether lower courts had "constitutionally considered" his disability were further explored.

As revealed in this SCOTUS order, no Justices dissented from the denial of a stay and denial of cert before the execution.

October 5, 2021 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (7)

Wooden it be remarkable if the Constitution again has something to say about applying ACCA?

For some reason, the Supreme Court's Wooden case concerning proper application of the Armed Career Criminal Act prompts me to make silly post titles.  My prior recent post, "Wooden, SCOTUS on the ACCA, not so free and easy," riffed poorly on song lyrics, while today I am trying a bad pun.  The question within the punny title here is driven by the fact that the Supreme Court has previously blown up part of ACCA based on Fifth Amendment vagueness problems (Johnson from 2015) and has also shaped its application of the statute based on Sixth Amendment jury right worries (Shepard from 2005).  So, perhaps unsurprisingly, during SCOTUS oral argument yesterday in Wooden, a number of Justices raised both Fifth and Sixth Amendment concerns about  courts having to figure out the reach of ACCA's extreme 15-year mandatory minimum for unlawful gun possession based on just whether and when a defendant on a prior crime spree has committed predicate offenses "on occasions different from one another."

I am disinclined to make bold predictions after listening to the oral argument, though I am tempted to predict that the defendant will prevail and the question is going to be on what ground(s). I reach that view because even Justice Alito seemed to be struggling to figure out how to give meaningful content to a key phrase that determines at least five years of federal imprisonment.  Here are a few choice quotes from Justice Alito: "This seems to me to be a nearly impossible question of statutory interpretation because the term 'occasion"' does not have a very precise meaning.";  "I have no idea what an occasion is or what a criminal opportunity is or what a criminal episode is."  If Justice Alito cannot come up with a pro-prosecution reading of the applicable statute, I doubt other Justices will be able to do so -- especially because many of the other Justices who generally tend to favor the government also tend to be fans of the Fifth and/or Sixth Amendment doctrines in play in this case (I am thinking here of the Chief Justice as well as Justices Thomas and Gorsuch).

For some other views on the argument, here is a round up of some of the press coverage I have seen:

From Bloomberg Law, "Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal"

From Courthouse News Service, "Burglary of many units in one facility poses counting challenge at sentencing"

From Law360, "Justices Dubious About Feds' 'Career Criminal' Interpretation"

From SCOTUSBlog, "A hypothetical-filled argument proves how tricky it is to define an 'occasion'"

October 5, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"But What Does It Mean? Defining, Measuring, and Analyzing Desistance From Crime in Criminal Justice"

The title of this post is the title of this new NIJ-published chapter authored by Michael Rocque.  Here is part of its executive summary

Research on crime over the course of an individual’s life has increased in the last 30 years both in scope and specificity.  One focus area that has emerged from this work is what scholars call “desistance from crime.”  Generally, desistance is understood to mean the reduction in criminal behavior that occurs after a person reaches adulthood.

But exactly what desistance is remains unclear, as varying definitions and measurement strategies have evolved over time. Early scholarship tended to view desistance as an event — that is, the termination of offending or end of a criminal career.  More recent definitions suggest that desistance is instead a process by which criminality declines over time.  Because inconsistent definitions lead to varying measurement strategies, it is difficult to come to conclusions about desistance.

The overall goal of this white paper is to provide grounded recommendations for policy and practice.  To do that, the paper reviews definitions of desistance used in the literature and then offers an updated, theoretically grounded definition as a foundation for future work: Desistance is “the process by which criminality, or the individual risk for antisocial conduct, declines over the life-course, generally after adolescence.”

The paper discusses how researchers have measured and modeled desistance and explores the implications of these strategies.  Which ways of measuring desistance get closest to the phenomenon of interest?  Which are most likely to advance our understanding of why people exit a criminal life and how we can facilitate that process?  These guiding questions provide a framework for the paper.

Finally, this white paper provides an overview of unresolved issues — such as the choice between surveys and official records, quantitative and qualitative methods, types of samples, and various modeling techniques — and offers detailed recommendations for policymakers, practitioners, and scholars who are seeking to examine and promote desistance from crime.

October 5, 2021 in Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, October 4, 2021

Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

The AP has effective coverage of the latest sentencings of January 6 rioters, and they highlight how different judges have different takes on how these unique offenders ought to be punished.

From Friday: "Judge questions whether Jan. 6 rioters are treated unfairly." Excerpts:

Rejecting the recommendation of prosecutors, a federal judge sentenced a Jan. 6 rioter to probation on Friday and suggested that the Justice Department was being too hard on those who broke into the Capitol compared to the people arrested during anti-racism protests following George Floyd’s murder.

U.S. District Court Judge Trevor McFadden questioned why federal prosecutors had not brought more cases against those accused in 2020 summertime protests, reading out statistics on riot cases in the nation’s capital that were not prosecuted.  “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” McFadden said during Danielle Doyle’s sentencing for entering the Capitol on Jan. 6 with a throng of other rioters.  Prosecutors recommended two months of home confinement for Doyle, who is from Oklahoma.

The statements by McFadden, an appointee of former President Donald Trump, were a major departure from the other federal judges overseeing insurrection cases so far, despite other Trump appointees on the court assigned to the hundreds of cases.... 

The Associated Press analyzed more than 300 criminal cases stemming from the protests incited by Floyd’s murder, showing that many leftist rioters had received substantial sentences, rebutting the argument that pro-Trump defendants were treated more harshly than Black Lives Matter protesters....

By contrast, U.S. District Judge James Boasberg on Friday sentenced another rioter, Andrew Ryan Bennett, to three months of home confinement, accepting the request by prosecutors. Bennett was accused of espousing conspiracy theories about the election and used “pugnacious rhetoric” in posting about his plans to be in Washington. 

From Monday: "Judge slams claims that Jan. 6 rioters are treated unfairly." Excerpts:

A Texas man who joined the mob that stormed the U.S. Capitol on Jan 6. was sentenced Monday to 45 days behind bars even though prosecutors weren’t seeking jail time, after the judge blasted comparisons between the riot that day and the Black Lives Matter protests over racial injustice.

U.S. District Judge Tanya Chutkan called it a false equivalence “to compare the actions of people protesting, mostly peacefully, for civil rights” to the mob that “was trying to overthrow the government.”  She said doing so “ignores the very real danger that the Jan. 6 riots pose to the foundation of our democracy.”...

Chutkan, who was appointed by former President Barack Obama, said she “flatly” disagreed with the suggestion raised by “some people” that the Jan. 6 defendants were being treated unfairly.  In fact, she said she believes those who joined the pro-Trump mob were being treated more leniently than many other defendants.

Some of many prior related posts:

October 4, 2021 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (6)

REMINDER: This week for "Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

Understanding-Drug-Sentencing_for-web_update-768x281I flagged here a few weeks ago the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which is now only days away as it is set for October 7-8, 2021.  This event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment," and I will here note again the main event page and this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

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

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

Registration

Separate registrations are provided for each day’s events.  Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, an exciting new addition to the event schedule is a screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  One can register for this event, taking place Thursday, October 7 at 5pm EDT.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate.  But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

October 4, 2021 in Drug Offense Sentencing | Permalink | Comments (0)

Pope Francis among those urging Missou Gov to grant clemency to offender scheduled to be executed tomorrow ... UPDATE: Gov denies clemency

As detailed in this new AP article, "Pope Francis has joined the chorus of people calling on Missouri Gov. Mike Parson to grant clemency to a death row inmate who is set to be executed for killing three people during a 1994 convenience store robbery."  Here is more:

In a letter last week, a representative for Pope Francis wrote that the pope “wishes to place before you the simple fact of Mr. Johnson’s humanity and the sacredness of all human life,” referring to Ernest Johnson, who is scheduled to be executed at 6 p.m. Tuesday at the state prison in Bonne Terre, about 50 miles south of St. Louis.

Parson, a Republican, has been considering whether to reduce the 61-year-old Johnson’s sentence to life in prison without the possibility of parole.  Johnson’s attorney, Jeremy Weis, said executing him would violate the Eighth Amendment to the U.S. Constitution, which prohibits executing intellectually disabled people.  He said multiple IQ tests and other exams have shown that Johnson has the intellectual capacity of a child. He also was born with fetal alcohol syndrome and in 2008, he lost about 20% of his brain tissue to the removal of a benign tumor.

Racial justice activists and two Missouri members of congress — Democratic U.S. Reps. Cori Bush of St. Louis and Emmanuel Cleaver of Kansas City — have also called on Parson to show mercy to Johnson, who is Black.

The Missouri Supreme Court in August refused to halt the execution, and on Friday, it declined to take the case up again. Weis and other attorneys for Johnson on Monday asked the U.S. Supreme Court for a stay of execution.  “This is not a close case — Mr. Johnson is intellectually disabled,” they wrote in their court filing.

Johnson admitted to killing three workers at a Casey’s General Store in Columbia on Feb. 12, 1994 — manager Mary Bratcher, 46, and employees Mabel Scruggs, 57, and Fred Jones, 58.  The victims were shot and attacked with a claw hammer. Bratcher also was stabbed in the hand with a screwdriver....

Johnson was sentenced to death in his first trial and two other times.  The second death sentence, in 2003, came after the U.S. Supreme Court ruled that executing the mentally ill was unconstitutionally cruel.  The Missouri Supreme Court tossed that second death sentence and Johnson was sentenced for a third time in 2006.

If the execution takes place as scheduled, it would be the seventh in the U.S. this year but the first not involving either a federal inmate or a prisoner in Texas.  The peak year for modern executions was 1999, when there were 98 across the U.S.  That number had gradually declined and just 17 people were executed last year — 10 involving federal prisoners, three in Texas and one each in Georgia, Tennessee, Alabama and Missouri, according to a database compiled by the Death Penalty Information Center.

UPDATE: This AP piece reports that the Missouri Gov was unmoved:

Missouri Gov. Mike Parson on Monday declined to grant clemency to death row inmate Ernest Johnson, despite requests for mercy from the pope, two federal lawmakers and thousands of petition signers.

October 4, 2021 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)

SCOTUS releases first big order list of October Term 2021 ... with little of particular sentencing note

It is the first Monday in October, which means SCOTUS gets its first big day of the new Term started with this big order list full of a whole lot of denials of certiorari in cases that stacked up through the summer.  As noted in this prior post, the Justices released a short order last week in which it granted cert in a handful of new cases (including a crack resentencing case).  So, the new order list is just a few GVRs, more cert denials than I can count, and also a few statements by Justices Breyer and Sotomayor concerning a few criminal case cert denials.

Notably, especially because SCOTUS is hearing another ACCA case this morning, the case prompting the most GVRs on this new SCOTUS order list is the Borden ACCA case from last term (basics here).  In addition, one of the statements from Justice Sotomayor is in an ACCA case from the Sixth Circuit.  The Armed Career Criminal Act is clearly that confusing federal law that is the ugly jurisprudential gift that keeps on giving.

In this post last week, I flagged some notable sentencing issues on SCOTUSblog's "Petitions to Watch."  It appears that cert was denied in roughly half of the cases listed in that prior post, but the other cases do not appeal to be mentioned on this first order list.  If those other cases have been relisted for more consideration by the Justices, that bodes well for a few more notable sentencing cases being added to the SCOTUS docket this Term.  As always, stay tuned.

UPDATE: Over at Crime & Consequences, Kent Scheidegger has a brief criminal-justice review of the order list today titled "The Long List from the Long Conference"

October 4, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, October 3, 2021

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault.  The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment.  The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed.  With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn’t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose).  Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

The majority’s conclusion stems from its premise that “it doesn’t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9.  I reject this premise.  Mr. Wimberly is presently confined under the Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly’s present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

October 3, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

October 3, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

More great Inquest materials, including critical overview of federal drug control history

I hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so very blogworthy.  Since my last posting, the site has posted these great new reads:

From Sharlyn Grace, "‘Organizers Change What’s Possible’: Before bold, decarceral changes can become a reality, community organizers tirelessly move the policy needle in other ways. Here’s how they did it in Illinois."  

"‘We Are Men’: On the 50th anniversary of a flashpoint of the American penal system, the cries of Attica still resonate today."

From Patricia Richman & Diane Goldstein, "Follow the Science: Federal law enforcement has long called the shots in the field of drug scheduling. But in the case of fentanyl analogues, Congress has a chance to lead — by doing nothing."

The last of these pieces provides an especially effective account of the federal government's "50-year campaign to tilt the balance in drug-control decision making away from science and towards enforcement, criminalization, and incarceration."  Here is a taste (with links from the original):

Since the dawn of modern drug policy, the United States has pretended to hew to a dual approach to illicit drugs, one that emphasizes law enforcement and public health in roughly equal measure.  That duality is a farce: Federal funding for enforcement has historically dwarfed public health and other demand-reduction strategies, and 50 years of the same approach to drug policy have shown that the whole enterprise has been a spectacular failure.

To this day, headlines still abound with reported large-scale drug seizures and ever-present arrests, but none of this has reduced the demand that drives the supply.  The overdose crisis, which has run parallel to the war on drugs for decades, is “the clearest indictment so far of the failure of prohibition to curb drug use,” as experts in drug policy recently put it. Meanwhile, tens of millions of Americans continue to struggle with substance-use disorder and its consequences.  And enforcement policies have come at an unfathomable cost, sending far too many young men of color to crowd our prisons, leaving broken families and communities in their wake.

October 3, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, October 2, 2021

"Financial Health and Criminal Justice: The Stories of Justice-Involved Individuals and Their Families"

The title of this post is the title of this notable new report from the Financial Health Network. Here is how its introduction gets started:

The United States has the highest prison and jail population, and the highest incarceration rate, in the world.  In 2020, approximately 2.3 million Americans were incarcerated, and, every year, over 10 million people are arrested or charged with crimes.  While these numbers are staggering in their size, they are made up of individuals — each with a unique and complicated human story, each with a family or social network impacted by their involvement in the criminal justice system.  The consequences of involvement with the U.S. criminal justice system run deep and wide — socially, physically, psychologically, and financially — often lasting well beyond release, and usually impacting more than just the individual arrested or incarcerated.  In addition, the criminal justice system disproportionately impacts people from low-income communities and communities of color.

The Financial Health Network presents a look into some of these lives, with particular focus on how their financial health affects their ability to navigate the criminal justice system, and how that system affects their financial health once they’re able to re-enter society.  In partnership with the University of Southern California’s (USC) Center for Economic and Social Research, we collected stories directly from 36 individuals impacted by this system, and learned how navigating the criminal justice system impacts the financial health of justice-involved individuals and their families.  These individuals and their families must traverse a complex and expensive set of processes, whether they’re managing the initial financial shock of arrest and detainment, juggling associated financial obligations, searching for limited employment opportunities upon release, or handling the added expenses or lost income of having a family member who is incarcerated.  Through all this, these individuals and their families often rely on their social networks to get by.

The following five briefs examine the experiences of individuals and their families as they manage the multiple costs of pretrial, incarceration, and re-entry, as well as the challenges associated with securing income, employment, and accessing financial services upon their release.

October 2, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Friday, October 1, 2021

After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?

I was very excited when earlier this week the US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences.  I was also pleased to see this follow-up press release from my GOP senator headlined "Portman, Senate Co-Sponsors Laud House Passage of EQUAL Act."  Here is the text:

U.S. Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT), the bipartisan Senate sponsors of the EQUAL Act, issued the below statement following the passage of the EQUAL Act in the House of Representatives by a bipartisan vote of 361-66.

“Today, House Republicans and Democrats joined together in passing the EQUAL Act, legislation that will once and for all eliminate the unjust federal crack and powder cocaine sentencing disparity.  Enjoying broad support from faith groups, civil rights organizations, law enforcement, and people of all political backgrounds, this commonsense bill will help reform our criminal justice system so that it better lives up to the ideals of true justice and equality under the law.  We applaud the House for its vote today and we urge our colleagues in the Senate to support this historic legislation.”

Ohio eliminated the crack-powder sentencing disparities back in 2011.

Along with bipartisan support in Congress, this landmark legislation has support from groups across the political spectrum, including the National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Digital Liberty, Faith and Freedom Coalition, ALEC Action, R Street Institute, National Association for Public Defense, American Civil Liberties Union, Sentencing Project, Fair Trials, FreedomWorks, Center for American Progress, Drug Policy Alliance, Jesuit Conference, Black Public Defender Association, Dream Corps JUSTICE, Federal Public and Community Defenders, Innocence Project, National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, Taxpayers Protection Alliance, and Tzedek Association.

So three notable GOP Senators from pretty red states are co-sponsors of the EQUAL Act in the Senate, and a wide array of right-leaning advocacy groups are also eager to see this pass.  And, to highlight again the House vote specifics, roughly twice as many GOP reps voted for the EQUAL Act as voted against it.  If this same breakdown happened on the Senate side, there would be over 80  total votes for passage of the EQUAL Act in the Senate.  Even if only half of GOP Senators support the EQUAL Act, that makes 75 votes in the Senate.  And, of course, only 10 GOP votes would be needed to end any filibuster, which I presume Senator Cotton would launch to gum up the works, to permit a floor vote.

So, if ever there was a federal criminal justice reform bill that should be a relatively easy lift, I would hope this is it.  And yet, I have not seen any advocates talk as if Senate action is imminent or even all that likely.  As I mentioned to a Vice News reporter who wrote here about the House vote, an average of more than four persons are sentenced in federal court for crack offenses every single week day, and many tends of thousands of (disproportionately black) offenders have been sentenced unfairly now for a full 35 years since the crack/powder disparity first became law way back in 1986.  There is no need or value to waiting to finally make all federal cocaine offenses subject to the same sentencing rules, and so I hope the Senate might move swiftly.  But, as is always the case it seems when in comes to Congress, I do not think there is reason to be optimistic.  Sigh.

(Oh, and more more point while I am bemoaning Beltway activities (or lack thereof): even if the EQUAL Act were to move forward quickly in the Senate, I do not think it currently provides emergency authority for the US Sentencing Commission to change the crack guidelines AND the US Sentencing Commission is currently inert until Prez Biden nominates a slate of Commissioners and those folks garner Senate confirmation.  Fortunately, because the guidelines are advisory, district judges could ignore the disparate crack guidelines even while still in place after passage of the EQUAL Act.  But then again, those disparate guidelines can and should be ignored now, and yet they are still followed in many cases and still create a benchmark that shapes and distorts the sentencing process.)

October 1, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (3)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

TRAC releases intriguing new report on "Equal Justice and Sentencing Practices Among Federal District Court Judges"

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University is a research center that keeps track of a lot of federal criminal case processing data. Today TRAC released this notable short data report under the title "Equal Justice and Sentencing Practices Among Federal District Court Judges." Here are snippets from the start and end of the report:

This report examines very recent data on federal trial judges and their sentencing practices. The existence of judge-to-judge differences in sentences of course is not synonymous with finding unwarranted sentencing disparity....  But a fair court system always seeks to provide equal justice under the law, working to ensure that sentencing patterns of judges not be widely different when they are handling similar kinds of cases.

In reality, sometimes the goal of equal justice under the law is achieved, and other times the actual sentences handed down depart markedly from this goal. Using case-by-case, judge-by-judge, data updated through December 2020, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur, and courthouses where there is wide agreement in sentencing among judges.

While special circumstances might account for some of these differences, half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.

Results further showed that currently seven (7) federal courthouses out of 159 compared had perfect agreement among judges in the typical or median sentences assigned. In an additional thirty (30), judge-to-judge sentences differed by six months or less.... At the other extreme, five (5) courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench....

This study largely replicates the findings from TRAC's first national judge-by-judge examination of the differences among federal judges in sentencing practices that appeared in the Federal Sentencing Reporter. That study was published almost a decade ago. While it is true that some specific courthouses show greater agreement today, others show less agreement. Many of these changes appear to reflect changes in the judges currently serving there.

Yet answering the question of whether significant intra-judge differences in sentencing practices exist is not sufficient to establish that such differences are indeed unwarranted sentencing disparities. Much more research and a great deal more time is needed for a thorough examination of the actual details of judge-by-judge sentencing patterns.

September 30, 2021 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

US Sentencing Commission releases big new report on "Recidivism of Federal Offenders Released in 2010"

Cover_2021-recidivism-overviewAs I have said repeatedly over the last three years, it is has been great to see that the US Sentencing Commission can continue to do a lot of needed and important data analysis even as its policy work it necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example was released today in this form of this big new report titled "Recidivism of Federal Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted below:

Overview

This report is the first in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI).  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for offenders released in 2010 to federal offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders. The final study group of 32,135 offenders satisfied the following criteria:

  • United States citizens;
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010;
  • Not reported dead, escaped, or detained;
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

  • The recidivism rate remained unchanged for federal offenders released in 2010 compared to offenders released in 2005 despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision....
  • For offenders who were rearrested, the median time to arrest was 19 months. The largest proportion (18.2%) of offenders were rearrested for the first time during the first year following release. In each subsequent year, fewer offenders were rearrested for the first time than in previous years. Most offenders in the study were rearrested prior to the end of supervision terms....
  • Assault was the most common (20.7%) offense at rearrest.  The second most common offense was drug trafficking (11.3%), followed by: larceny (8.7%), probation, parole, and supervision violations (8.1%), and administration of justice offenses (7.5%).
  • Combined, violent offenses comprised approximately one-third of rearrests; 31.4 percent of offenders were rearrested for assault (20.7%), robbery (4.5%), murder (2.3%), other violent offense (2.3%), or sexual assault (1.6%).
  • Similar to findings in its previous studies, the Commission found age and Criminal History Category (CHC) were strongly associated with rearrests....  Combined, the impact of CHC and age on recidivism was even stronger.  During the eight-year follow-up period, 100 percent of offenders who were younger than 21 at the time of release and in CHC IV, V, and VI (the most serious CHCs) were rearrested.  In contrast, only 9.4 percent of offenders in CHC I (the least serious CHC) who were aged 60 and older at release were rearrested.
  • Offenders sentenced for firearms and robbery offenses had the highest rearrest rates during the eight-year follow-up period, with 70.6 percent and 63.2 percent, respectively.  In contrast, offenders sentenced for fraud, theft, or embezzlement had the lowest rearrest rate (35.5%).

September 30, 2021 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how.  This question is far more complicated than it might seem.  We could cut the prison population in half, for example, by drastically shortening sentences.  Or we could reduce prison admissions.  Or we could do both.  And we could do either or both for countless combinations of criminal offenses.  Moreover, even when they reach the same numeric target, these strategies are not equivalent.  They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect.  To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.

This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies.  The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself.  We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing.  Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%.  Finally, it identifies the best performing strategies against each metric.

The results have several broader takeaways.  First, the optimal approach to decarceration depends heavily on which metrics we value most.  The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses — a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds.  Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities.  Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.

September 29, 2021 in National and State Crime Data, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Two misdemeanants get 45-day jail terms at latest January 6 riot sentencings

In this post a few weeks ago, I noted that federal prosecutors had started talking up the prospect of seeking jail time even in some of the January 6 riot cases that were resolved through only misdemeanor charges.  Today, as reported in this new AP piece, headlined "Ohio friends sentenced to 45 days for U.S. Capitol riot Jan. 6," jail time for two January 6 misdemeanants became a reality:

Federal prosecutors assert that everybody who stormed the U.S. Capitol on Jan. 6 should be evaluated individually when deciding whether a prison sentence is warranted.  On Wednesday, a judge accepted the Justice Department’s assessment that two friends from Ohio fall into a category of rioters who deserve to be incarcerated.

U.S. District Judge James Boasberg sentenced Derek Jancart and Erik Rau to 45 days in jail. Prosecutors had recommended four months of imprisonment for both men.  They must report to jail by Nov. 29.  The jail sentences for Jancart and Rau could become benchmarks for how the courts resolve many other Capitol insurrection prosecutions, a caseload that tops 600 defendants and grows by the week.

Like most of the insurrectionists who have pleaded guilty so far, Jancart and Rau aren’t accused of engaging in any violence or destruction at the Capitol or of conspiring to stop Congress from certifying President Joe Biden’s electoral victory. Defense attorneys compared their actions to those of other Capitol riot defendants who avoided prison sentences after pleading guilty to non-violent misdemeanors.

But prosecutors cited several factors in arguing that prison, not probation, was the appropriate sentence for both men — and will be in many other cases.  They said Jancart, an Air Force veteran, prepared for violence on Jan. 6 by bringing a gas mask and two-way radios to Washington. Rau, a steel mill worker, brought a medical kit and Kevlar-lined gloves.

They said Jancart and Rau spent 40 minutes inside the Capitol, reaching House Speaker Nancy Pelosi’s conference room. Jancart celebrated the violence on social media and didn’t show any remorse when the FBI arrested him, according to prosecutors.  They said Rau screamed, “We have you surrounded!” at police officers and shouted, “Go, go, go!” and “Yeah, they just pushed through the guards!” Those statements are “akin to inciting a riot and contributed to the environment of terror on that day,” prosecutors said.

“This was not a protest,” prosecutors wrote. “And it is important to convey to future rioters and would-be mob participants — especially those who intend to improperly influence the democratic process — that their actions will have consequences.”

The judge told Jancart and Rau that they and other rioters tried to undermine the peaceful transfer of power after a democratic election.  “There are few actions that are as serious as the one this group took on that day,” Boasberg said.

Jancart and Rau apologized and expressed remorse for their actions. “I did get caught up in the moment,” Jancart said.  “I just kind of followed the crowd and let my curiosity get the best of me.”

“There is no excuse for my actions on Jan. 6,” Rau said. “I 100% know better than to do what I did that day.”

Jancart was arrested at his Ohio home in February. Rau was arrested in July. Both men pleaded guilty to disorderly conduct in a Capitol building, a misdemeanor that carries a maximum sentence of six months’ imprisonment.

Over 80 defendants have pleaded guilty to riot-related offenses, but only seven others besides Jancart and Rau have been sentenced so far. A Florida man who entered the U.S. Senate chamber was sentenced to eight months in prison.  Two were sentenced to time served after six months in jail. Two were sentenced to house arrest. Two others received probation.

Probationary sentences “should not necessarily become the default,” prosecutors wrote.  “Those who trespassed, but engaged in aggravating factors, merit serious consideration of institutional incarceration. While those who trespassed, but engaged in less serious aggravating factors, deserve a sentence more in line with minor incarceration or home confinement,” they added....

More than 50 other rioters are scheduled to be sentenced before the end of 2021.

Some of many prior related posts:

September 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (2)

Register for 2021 Menard Family Lecture on Drug Policy and Criminal Justice and other great drug sentencing events

Menard-Lecture_for-u.osu_.edu_updated-768x281In this post last week, I noted the exciting event taking place on October 7-8 titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  In addition to again highlighting the full symposium (and urging everyone to register for all the panels), I wanted to be sure to give some extra attention to the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" scheduled for Thursday, October 7 from 12:30-2pm EDT.  Here again is the summary description of a discussion that I will have the honor of moderating (along with this registration link):

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, I wanted also to note an exciting new addition to the event schedule with a film screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate. But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

September 29, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, September 28, 2021

Texas completes state's third execution of 2021

As reported in this local article, "Texas carried out its third execution of the year Tuesday night, lethally injecting Rick Rhoades for killing two men in their Houston-area home 30 years ago."  Here is more:

I speculated in this post, wrongly, that death row inmates might all be able to secure a stay of execution after SCOTUS granted cert in Ramirez to determine religious liberty rights in the Texas execution chamber.  A couple of weeks ago, as noted here, another Texas inmate did get an execution stay based on religion claim SCOTUS is considering in Ramirez.  But it seems Rhoades was either uninterested or unable to make a Ramirez claim, and his execution went forward as scheduled.

September 28, 2021 in Death Penalty Reforms | Permalink | Comments (1)

USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns

Jason-voorhees-friday-the-13th_1I had heard rumors that the US Sentencing Commission was working on a new sentencing data tool for federal sentencing judges, and today the USSC unveiled here what it calls the Judiciary Sentencing INformation (JSIN).  Here is how the USSC generally describes JSIN (which is called "jason" in the helpful video the USSC has on its site):  

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.  

This all sounds great and interesting, and JSIN seems relatively easy to navigate and quite useful until one notices these notable data choices spelled out in the FAQ provided by the USSC (with my emphasis added):

After excluding cases involving a §5K1.1 substantial assistance departure, JSIN next provides a comparison of the proportion of offenders sentenced to a term of imprisonment to those sentenced to a non-imprisonment sentence....

JSIN reports the average and median term of imprisonment imposed in months for cases in which a term of imprisonment was imposed. Probation sentences are excluded.

Though I am not a data maven, I can understand the general logic of excluding the 5K and probation cases from the JSIN data analysis. But, perhaps because I am not a data maven, I greatly fear that these data exclusion choices result in the JSIN platform being systematically skewed to report statistically higher average and median terms of imprisonment.  For example, if 94 imprisonment cases have an average prison term of, say, 50 months and 6 more cases were given probation, I think the true average sentence is 47 months, but JSIN is seemingly built to report an average of 50 months.  Though less predictable, I fear the exclusion of 5K cases also may create a kind of severity bias in the data reporting.

IN addition, I did not see any way to control for the application of mandatory minimum statutes, which also serve to skew judicial sentencing outcomes to be more severe.  If a case have a guideline range of 30 for a first offender, meaning a range of 97-121 months under the guidelines, but a 10-year mandatory minimum applies, the judge is duty-bound to impose a sentence of at least 120 months even if he might want to give 97 months or something a lot lower.  If that sentence of 120 months is treated in the averages like every other sentence, it looks like the judge wanted to give the top of the guideline range even though he gave the lowest sentence allowed by law.  In other words, without controlling for the distorting impact of mandatory minimums, these averages may not really reflect judicial assessments of truly justified sentencing outcomes but rather averages skewed upward by mandatory minimums.

I am not eager to beat up on the USSC for creating a helpful and easy-to-use data tool and for making this tool accessible to everyone online.  And I am hopeful that the exclusions and mandatory minimum echoes may only impact the data runs in relatively few cases and only a small amount.  But even if the impact is limited, I think it quite worrisome if this JSIN tool has a built-in and systemic "severity biases" due to its data choices.  If it does, when hear about JSIN, I am not going to imagine the heroic Jason Bourne, but rather the nightmarish Jason Voorhees.

September 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences

Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 — more than a quarter century ago! — sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ushering in decades more disproportionately severe crack sentences and extreme racial inequities in federal cocaine offense punishments.

Barack Obama at Howard University gave a 2007 campaign speech — exactly 14 years ago today — assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."   Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

But in early fall 2021, and despite the deep divisions on so many political issues, the vast majority of US Representatives spoke together today to say that federal law should no longer sentence crack and powder cocaine offense differently.  This Hill article explains:

The House passed legislation on Tuesday that would eliminate the federal disparity in prison sentences for crack and powder cocaine offenses, in an effort to enact criminal justice reform on a bipartisan basis. The bill, which lawmakers passed 361-66, is meant to address a gap that its proponents say has largely fallen on Black people and other people of color.

The House passed the measure handily, but the vote divided Republicans. A majority of House Republicans voted for the bill with all Democrats, but the 66 votes in opposition all came from the GOP....

The Anti-Drug Abuse Act of 1986, a law signed by then-President Reagan as part of the “War on Drugs,” established a five-year minimum sentence for possessing at least five grams of crack, while an individual would have to possess at least 500 grams of powder cocaine to receive the same sentence. A 2010 law called the Fair Sentencing Act reduced the cocaine sentencing disparity for pending and future cases, but did not fully eliminate it. And a criminal justice reform bill enacted in 2018 under former President Trump allowed people convicted prior to passage of the 2010 law to seek resentencing.

Under the bill the House passed on Tuesday, defendants who were previously convicted for crack cocaine offenses would also be allowed to petition for sentence reductions.

Rep. Louie Gohmert (R-Texas), a former judge, said the measure was a “a great start toward getting the right thing done” as he recalled dealing with cocaine cases. “Something I thought Texas did right was have a up to 12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they've got a better chance of making it out, understanding just how addictive those substances are,” Gohmert said during House floor debate.

The legislation now heads to the Senate, where at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A companion bill introduced by Sen. Cory Booker (D-N.J.) currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Ky.) and Thom Tillis (N.C.).

I lack knowledge about the ways and means for this kind of bill to get a vote in the Senate soon, but I feel pretty confident that it would get similarly strong support in that cambers if and whenever a vote goes forward. I hope such a vote goes forward soon, since we have all waited more than long enough for more sensible sentencing in this arena.

A few prior recent related posts:

September 28, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases updated "Compassionate Release Data Report" covering all of 2020 and first half of 2021

As detailed in prior posts here and here, a few months ago the US Sentencing Commission started releasing short data report titled "Compassionate Release Data."  Though these reports provide only some very basic accounting of the grants and denials of federal compassionate release motions nationwide, they still provide the only "official" accounting of who is getting relief and some of the basics surrounding their demographics. 

Exciting, the latest of these reports was released today at this link and "reflects compassionate release motions decided by the courts during calendar years 2020 and 2021 (January 1, 2020 - June 30, 2021)."  Table 1 of the report shows, perhaps unsurprisingly, that the number of these motions brought and the grant rate declined though the first six months of 2021.  I presume that could reflect the fact that lots of the strongest cases may have received release in 2020 and also concerns about COVID started declining as vaccines became available to federal prisoners.

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

A few of many prior related posts:

September 28, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)