Sunday, March 27, 2022

"Charging Time"

The title of this post is the title of this new paper now available via SSRN authored by Pamela Metzger and Janet Hoeffel. Here is its abstract:

On the day William Haymon turned 16, it was his 511th day in jail in Mississippi and a prosecutor had yet to formally charge him with a crime.  William is one of thousands of people across the country arrested and jailed for weeks, months, and even years without charges.  In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them.  Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame and distress. Yet this violates no laws; it circumvents no constitutional protections.

To date, there has been no study of the necessity of the extended time period between arrest and charging.  Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss.  In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.

A recent original study reveals that prosecutors’ crushing caseloads, shoddy and inadequate investigative work by police officers, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep.  Extended time in jail risks lives, health, jobs and case outcomes.  Yet we explain how neither the constitutional protections granted to criminal defendants nor statutory provisions provide any remedy at this uncharged stage.  After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in the charging decisions of prosecutors across the country.

March 27, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Saturday, March 26, 2022

Following up on just some of the sentencing discourse from SCOTUS confirmation hearings

Prior to this past week's Supreme Court confirmation hearing in the Senate Judiciary Committee, I had been pleased to see coverage of the US Sentencing Commission and the ways in which nominee Judge Jackson's service on the USSC might impact her future work if confirmed.  I have also long said that a nominee's experience as a federal district judge (and thus a sentencing judge) should be an asset to work as Justice.  But, while looking forward to a sentencing-related discourse, I ended up generally disappointed by what generally seemed like a failure by all Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity of sentencing determinations.  

Helpfully, I have now seen a couple of press pieces picking up some of these themes.  Here are links and snippets:

By Dawinder S. Sidhu at The Baltimore Sun, "Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures":

If anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following....

Judge Jackson should stand behind her sentencing decisions. So too should Congress step up and fix a system that only it is capable of repairing. It would be a shame for Congress to give attention to that system only when the cameras are rolling and the bright lights of the confirmation process are flashing. The American people, and the principled administration of justice, deserve more.

By Jessica Schulberg at HuffPost, "Ketanji Brown Jackson Was Right To Use Discretion On Sentences. Why Didn’t Democrats Defend It?":

When Republicans falsely accused the Supreme Court nominee of going easy on sex offenders, Democrats could have taken the opportunity to educate the public about the need for sentencing reform. Instead, they sidestepped the issue.

Some prior related posts:

March 26, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Friday, March 25, 2022

"The Law Enforcement Lobby"

The title of this post is the title of this paper authored by Zoe Robinson and Stephen Rushin now available via SSRN.  Here is its abstract:

The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system — particularly police unions, correctional officer unions, and prosecutor associations — that exert an outsized role in policy development.  The law enforcement lobby operates largely without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that often institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements.  Nevertheless, the law enforcement lobby remains at the periphery of contemporary scholarly conversations about the democratization and design of criminal justice institutions.

This Article describes and evaluates the influence of the law enforcement lobby on criminal justice policy.  It argues that the law enforcement lobby raises unique problems that extend beyond traditional lobbying concerns, including the ability to influence life and liberty, the power to perpetuate racial subordination, and a pervasive power over the operation of democratic institutions.

Drawing on the growing calls for democratization and power-shifting in the criminal justice system, this Article offers a range of recommendations to curtail the strength of the law enforcement lobby.  First, the Article argues for reforms that “level up” of the power of competing interests that can counter the power of the law enforcement lobby in criminal justice policymaking.  In doing so, the Article focuses specifically on reforms that imbed contestation in policymaking by communities most impacted by the criminal justice system.  Second, the Article concurrently proposes mechanisms to “level down” the power of the law enforcement lobby, including realistic restrictions on the lobbying capacity of law enforcement interest groups that draws on First Amendment Speech Clause doctrine that permits restriction of public employee speech. Taken together, these reforms could facilitate broader transformation of the American criminal justice system.

March 25, 2022 in Who Sentences | Permalink | Comments (0)

Prison Policy Initiative provides terrific accounting of COVID pandemic's early impact on prison and jail populations

Wendy Sawyer at the Prison Policy Initiative has authored this great new report that effectively explores the various forces that contributed to declining incarcerated populations in the early COVID period. The report, which merits a full and careful read, is fully titled "Untangling why prison & jail populations dropped early in the pandemic: Reductions in prison and jail populations were due to COVID-related slowdowns in the gears of the criminal legal system. Without intentional action, these reductions will be erased." Here is how it gets started (with links from the original):

Last week, we released the latest edition of our Mass Incarceration: The Whole Pie report, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available.  Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic.  Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change.  In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.

It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”

The changes that have had the most impact on incarceration since the start of the pandemic include:

  • 24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
  • 21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
  • 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
  • A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
  • 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.

March 25, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 24, 2022

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

March 24, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (26)

In praise of the continued sentencing sensibility of the National Review's Andrew McCarthy

Though I have been intrigued by the considerable attention given to Judge Ketanji Brown Jackson's sentencing record even since Senator Josh Hawley's tweets flagged his concerns about about her writings, comments and sentencings in some sex offense cases (background here), I have been quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations.  District judges often say sentencing is the hardest part of their job, and this is true even in the run-of-the-mill cases when the facts are routine and the applicable statutory law is clear and the applicable guidelines are helpful.  (A few years ago, I gave a talk (written up here) partially titled "Sentencing is So Dang Hard" which details just some reasons I think judge are right to describe sentencing this way.)

Critically, in federal child pornography (CP) cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful.  In the CP setting, applicable statutory law is quite messy — e.g., what is the real difference between child pornography "possession" and "receipt", how should USSC policy statements be considered here — and the applicable guidelines are widely regarded as badly broken.  Those legal realities mean federal sentencing takes on extra layers of challenge in CP cases.  The challenges become especially profound when difficult and distinctive facts come along, such as in the oft-discussed Hawkins case where, according to this New York Times article, the prosecutor described "very unique circumstances" involving teenage offender and the defense presented an "evaluation by a psychologist asserting that Mr. Hawkins did not 'demonstrate sexual deviation' but was instead driven to watch the pornographic images as 'a way for him to explore his curiosity about homosexual activity and connect with his emotional peers'."

Under difficult circumstances during questions from mostly GOP Senators, Judge Jackson tried hard to explain her sentencing process and goals, and she did highlight some of the unique challenges these cases present in light of problematic guidelines.  But, based on the parts of the hearing I was able to watch, I was generally underwhelmed by the efforts of Judge Jackson's supporters to discuss with her more broadly the deep challenges and profound humanity that all sentencing decision-making involves.  And I heard precious little discussion of the particulars of the Hawkins case or other cases in which defendants present significant mitigating circumstances that find little or no expression is problematic guidelines. 

But, as the title of this post suggest, there is one commentator who has done a great job in this arena this week, and I want to give a particular shout out to the work he has done to consistently and effectively contextualizing these stories.  Specifically, the National Review's Andrew McCarthy has now done three lengthy pieces that are must-reads for everyone following these stories:

"Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography"

"Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases"

"Judge Jackson and Judiciary Committee Republicans Joust on Child-Porn-Possession Case against 18-Year-Old . . . Again"

I flagged the first of these pieces in a prior post, but I want to especially laud Mr. McCarthy for not being content with his important first salvo against this line of attack on Judge Jackson.  Mr. McCarthy makes clear that he is not a fan or supporter of Judge Jackson, but he has still been willing to write a significant series of detailed pieces documenting in so many ways why the sentencing discourse by the GOP here is so misguided.  Kudos to him (and the National Review) for such sentencing sensibility.

March 24, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5)

Spotlighting that public defenders are underrepresented on all high courts in the US

The nomination of Judge Ketanji Brown Jackson to the US Supreme Court has brought needed attention to the fact that persons with criminal defense experience, particularly public defense experience, have long been underrepresented on our nation's top court.  And this Bolts article, headlined "Despite Federal Gains, Public Defenders Largely Missing from State Supreme Courts," usefully highlights that the top courts in our states also have roughly five times as many former prosecutors as former public defenders.  Here is how the article starts (with links from the original):

Ketanji Brown Jackson’s past work as a public defender emerged as a focal point of her confirmation hearings this week as Joe Biden’s pick for the U.S. Supreme Court. If confirmed, Jackson would be the first former public defender on the high court in more than three decades, and also the first Black woman to join the court, carrying on the legacy of Thurgood Marshall, the nation’s first Black justice and the last with public defender experience. Biden has already tapped former public defenders for federal judgeships at a record rate.

“You are standing up for the constitutional value of representation,” Jackson said during her hearings on Tuesday, defending her record from Republican attacks.  Her supporters, meanwhile, have cheered Jackson’s experience as adding a much-needed perspective to the court.  From the way this clash has unfolded, you’d think that judges with public defender backgrounds are part of the routine tit-for-tat of judicial nominations, a perspective that Democrats relish adding to the bench when they get the opportunity.

But in state supreme courts around the country, there is comparatively little momentum to install judges with public defense backgrounds, despite the great power those judges hold in interpreting criminal law.  The vast majority of criminal cases are decided at the state level, and according to a study by the Brennan Center for Justice, as of 2021 only seven percent of state justices are former public defenders.  More than a third are former prosecutors.

In the two most populous states with Democratic governors, California and New York, efforts by some advocates to convince recent governors to appoint public defenders have fallen short, and former prosecutors have been added to the bench instead.

“The high courts of every state and the U.S. Supreme Court are regularly confronted with novel questions about the interpretation of criminal statutes and procedure,” said Alan Lewis, the chair of the New York State Association of Criminal Defense Lawyers’s screening committee. “It is very much regrettable if the only kind of experience that all of the judges bring to the bench from their previous career as advocates is for one side — the prosecution — with no experience on the other, representing accused persons.”

March 24, 2022 in Who Sentences | Permalink | Comments (0)

Wednesday, March 23, 2022

Is Congress finally on the verge of equalizing crack and powder cocaine sentences?

I asked in this post a few weeks ago, "Why is getting the EQUAL Act through the US Senate proving so challenging?".  Excitingly, as detailed in this new Bloomberg piece, headlined "GOP Support Clears Senate Path for Bill on Cocaine Sentencing," it now looks like a bill to equalize crack and powder sentences now may have a ready path to passage. Here are the exciting details:

Ten Senate Republicans have signed on to a bill that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine, paving the way for likely passage in the evenly divided chamber where 60 votes are needed for most legislation.

“That looks like you’d get to 60, really,” said Kentucky Senator Rand Paul, one of the 10 GOP co-sponsors of the EQUAL Act.  “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

Senate Majority Leader Chuck Schumer signed onto the bill as a co-sponsor on Monday, but his office did not immediately respond to questions on his plans for floor debate.  The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

The bill, sponsored by Judiciary Chairman Dick Durbin, an Illinois Democrat, and New Jersey Democratic Senator Cory Booker, eliminates the lower quantity thresholds for crack cocaine, which the bill’s proponents have said unjustly targets Black offenders.

In 2020, the U.S. Sentencing Commission found that 77.1% of crack cocaine trafficking offenders were Black and 6.3% were White.  Yet White people are more likely to use cocaine in their lifetime than any other group, according to the 2020 National Survey of Drug Use and Health.

Current laws establish an 18-to-1 ratio on federal penalties for crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine....

Sentencing disparities between crack and powder cocaine were originally created in 1986 with a 100-to-1 ratio.  The Sentencing Commission issued a special report in 1995 stating the 100-to-1 ratio punished low-level crack dealers “far more severely” than high-level suppliers of powder cocaine, despite there being no pharmacological difference between the two forms of the drug.  Then-President Bill Clinton and Congress rejected the commission’s recommendations to amend the law.

Fifteen years later, Congress reduced the sentencing disparity from to 18-to-1, but advocates have fought to further narrow the sentencing gap....

Senator Jerry Moran, a Kansas Republican, recently signed on as a co-sponsor of the bill after studying the issue with constituents, he said, and determining this would be a step toward “criminal justice fairness.” Moran said it is his “expectation that this bill will be considered by the Senate.”

A few related posts on the EQUAL Act:

March 23, 2022 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender | Permalink | Comments (3)

Nebraska having a bad time sorting through how to apply good-time credits

I just came across this interesting recent local article from Nebraska, headlined "Prison officials wrote a bill to release prisoners earlier. They’re applying the law in a way that doesn’t." The story it tells is yet another reminder of the myriad challenges that can attend effectively reforming and effectively administering our sentencing and corrections systems. Here is part of the story:

In 2011, the Nebraska Department of Correctional Services wrote a bill that would allow well-behaved prisoners the chance to shorten their time behind bars.  Eleven years later, that same department is applying the resulting law in a way neither the state senator who sponsored the bill nor the then-director of Nebraska’s prisons intended.

Prison officials now shorten a prisoner’s final release date, but never change the day that prisoner becomes eligible for parole.  The result: Thousands of prisoners sentenced under the law have potentially stayed in prison days, weeks or months longer than the law’s authors intended.

The debate over semantics — namely, the meaning of three dozen words buried in a state law — has made its way to the Nebraska Supreme Court, whose decision could shorten the stays of thousands of people in the state’s chronically overcrowded prisons....

On one side: The department argues that it’s properly following the 11-year-old law when it comes to calculating when a prisoner is eligible for parole. If there’s a flaw, it’s in the language of the law itself, state lawyers have argued in court.

On the other: Robert Heist II, who has been imprisoned since 2016, argues that the department is misreading the law and delaying parole eligibility.

In some cases, prisoners end up being released with no supervision — “jamming out” in prison-speak — before they even become parole eligible....

The question now before the Nebraska Supreme Court: Should the three days a month earned for good behavior be applied to the date when a prisoner first becomes eligible for parole? The state senator who sponsored the bill and the former head of prisons say yes.  Making prisoners parole eligible sooner was an intended result of the bill, both Council and Houston told the Flatwater Free Press.  “I introduced this bill as a means of providing additional ways to reduce the prison population and get people parole eligible,” Council said in an interview....

But the state is simply following the letter of the law, state lawyers have argued to the Nebraska Supreme Court.  That law as written, they say, doesn’t allow for the extra good time days to go toward parole eligibility....

This interpretation of the law has potentially affected thousands of prisoners who could have had at least a little time shaved off their sentences. But the most egregious cases are those prisoners who “jam out” before even becoming parole eligible.

In 2019, the department told Heist that 62 prisoners at the time had tentative release dates that preceded their parole eligibility because of their earned good time.  As of March 2022, the prison’s roster listed as many as 306 individuals sentenced since 2011 who were released before they became eligible for parole.

“When you become parole eligible after you’ve done your sentence, that doesn’t make any sense,” Heist said in an interview.  Those prisoners — whose sentences should have included a shot at parole — become “guaranteed jam outs,” Heist said.

Under questioning at the Nebraska Supreme Court, the state’s lawyers didn’t dispute that inverted sentences — when mandatory release actually comes before parole eligibility — can and do happen.  “Yes, it is possible that [inverted sentences] can occur,” Scott Straus, assistant attorney general for the state, said during oral arguments.  “However, the plain language of the statute does not let us even get to whether that result is absurd or not.”

March 23, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

The Sentencing Project and Fair and Just Prosecution produce "Felony Murder: An On-Ramp for Extreme Sentencing"

The Sentencing Project and Fair and Just Prosecution today released this interesting new report about sentencing in felony murder cases titled "Felony Murder: An On-Ramp for Extreme Sentencing." Here is part of its executive summary:

Murder typically refers to an intentional killing.  But “felony murder” laws hold people like Mendoza liable for murder if they participated in a felony, such as a robbery, that resulted in someone’s death.  These laws impose sentences associated with murder on people who neither intended to kill nor anticipated a death, and even on those who did not participate in the killing.  As such, they violate the principle of proportional sentencing, which is supposed to punish crimes based on their severity.  These excessively punitive outcomes violate widely shared perceptions of justice.  With one in seven people in U.S. prisons serving a life sentence, ending mass incarceration requires bold action to reduce extreme prison terms such as those prescribed for felony murder.

These laws run counter to public safety, fiscal responsibility, and justice.  Although other countries have largely rejected the felony murder doctrine, 48 states, the District of Columbia, and the federal government still use these laws.  The only two states that do not have felony murder laws are Hawaii and Kentucky.  Six other states require some proof of intentionality regarding the killing to consider it murder, though the use of a gun — or mere knowledge of a codefendant’s gun use — satisfies this requirement in some jurisdictions.  In any case, all felony murder laws use the underlying felony to either a) treat as murder a killing that would not have otherwise been considered murder, or b) increase the gradation of murder, such as from second to first degree.

This report evaluates the legal and empirical foundation, and failings, of the felony murder rule, profiles impacted individuals, and highlights recent reform efforts in 10 jurisdictions. Key findings include:

1. Felony murder laws widen the net of extreme sentencing and are counterproductive to public safety.

  • For felony murder convictions for adults, eight states and the federal system mandate LWOP sentences, 15 states mandate LWOP in some cases, and 17 states and Washington, DC make LWOP a sentencing option.  Four states permit or require a virtual life sentence of 50 years or longer for some or all felony murder convictions.
  • In Pennsylvania and Michigan, one quarter of people serving LWOP were convicted of felony murder — over 1,000 people in each state.
  • Felony murder laws have not significantly reduced felonies nor lowered the number of felonies that become deadly.
  • The extreme prison sentences associated with felony murder laws add upward pressure on the entire sentencing structure.
  • Felony murder laws spend taxpayer dollars on incarcerating people who no longer pose a danger to the community and divert resources away from effective investments that promote public safety.
2. Felony murder laws have particularly adverse impacts on people of color, young people, and women.
  • In Pennsylvania in 2020, 80% of imprisoned individuals with a felony murder conviction were people of color and 70% were African American.
  • Felony murder laws ignore the cognitive vulnerabilities of youth and emerging adults by assuming that they recognize the remote consequences of their own actions — and those of others in their group. In Pennsylvania, nearly three-quarters of people serving LWOP for felony murder in 2019 were age 25 or younger at the time of their offense, as were over half of Minnesotans charged with aiding and abetting felony murder in recent years.
  • An exploratory survey in California found that 72% of women but only 55% of men serving a life sentence for felony murder were not the perpetrators of the homicide.  The California Coalition for Women Prisoners reports that the majority of their members convicted of felony murder were accomplices navigating intimate partner violence at the time of the offense and were criminalized for acts of survival.

March 23, 2022 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (6)

Tuesday, March 22, 2022

"Bargaining Without Bias"

The title of this post is the title of this article authored by Cynthia Alkon and recently posted to SSRN.  Here is its abstract:

Bias, disparate treatment, and racism are embedded into the U.S. criminal legal system.  A key player within the criminal legal system who could dramatically reduce or eliminate these disparities are prosecutors.  Prosecutors enjoy extraordinary power and they exercise that power with few constraints. For most defendants the single most important prosecutorial decision, after charging, is the plea offer.  Yet, there are virtually no limitations on prosecutors during the plea bargaining stage and relatively little attention given to how standard plea bargaining practices can exacerbate bias. The prosecutor is the key decision maker and, unfortunately, standard prosecutorial practices can exacerbate the biases that are already embedded into the criminal legal system.  There are multiple challenges that make it difficult for prosecutors to reduce or eliminate their biases.  The first core problem is that plea bargaining is largely unsupervised and prosecutors have extraordinary power and virtually unlimited discretion in the process. Prosecutors regularly engage in hard bargaining tactics and there is no meaningful check on prosecutorial bias in deciding what offers to make on what cases.  The second core problem is that plea bargaining can exacerbate racial disparities and bias.  The third core problem is that once a case comes into the criminal legal system, and the case is charged, a prosecutor’s first offer acts as an anchor in the negotiation, regardless of whether the offer reflects bias.  Unlike in other negotiation contexts, the defendant in a criminal case most often has no meaningful option to counter or walk away from the prosecutor’s offer.

In this article, to work towards decreasing bias in plea bargaining, I propose a structural fix and an individual fix to these core problems.  The structural fix is that prosecutors' offices should adopt policies for blind assessment of cases when the first plea offer is made.  All indicia of race or ethnicity (including names and neighborhoods) should be removed when prosecutors review a case and make the initial plea offer.  This would help prosecutors focus on the facts and their evidence when making a plea offer and prevent bias in decision making.  However, it is not realistic to expect that prosecutors, even in offices that adopt blind charging and plea bargaining policies, would remain blind to who the individual defendant is in all cases, particularly in cases where the first offer is made after arraignment.  Therefore, the individual fix is to train prosecutors on empathy.  Prosecutors' offices should expand and improve training and programs on empathy to change how prosecutors view defendants.  People tend to have empathy for, and in the criminal context give the benefit of the doubt to, those who are "more like them" — including being the same race and socio-economic group. Empathy for others is a skill that can be taught, like trial skills, negotiation, or writing.  Prosecutors' offices need to include empathy skills as an integral part of their overall training. Improved empathy skills would help prosecutors to stop looking at defendants as simply "criminals" — a label that is often racially-based. Instead, more prosecutors could learn to see defendants, in the words of Bryan Stevenson, as "more than the worst thing" they have ever done.

March 22, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

Right on Crime highlights "Second Look for conservative justice and cost-savings"

ROC-Thumbnails-18The folks at Right on Crime has this interesting new coverage of "Second Look in Texas."  This one-pager, produced by Nikki Pressley, carries the title that is quoted in this title of this post, and here is the main text (along with the interesting graphic I have reprinted):

Texas has the harshest parole eligibility guidelines for juvenile offenders of any state, allowing some to be imprisoned without the possibility of parole for 40 years. Even worse, many of these youth are convicted through the Law of Parties, meaning they were merely an accessory to the actual crime and never pulled the trigger.  Science proves that continued brain development allows a healthy brain to mature and make more logical decisions far before someone completes a 40-year sentence, and recidivism rates for these offenders is extremely low.

Second Look legislation would lower the time until parole eligibility for juvenile offenders from 40 years to 20 years.  This change should also be retroactive, allowing adults currently serving time in prison for a crime committed as a juvenile to also have the opportunity for earlier parole.  Proving to be little or no threat to public safety and simultaneously saving hundred of thousands of taxpayer dollars, Second Look legislation is a win-win reform.

And here are "key points" stressed:

March 22, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Monday, March 21, 2022

Recalling the text of the applicable law which helps account for Judge Jackson's sentencing rulings

I was able to listen to some of the opening statements of Senate Judiciary Committee members during today's installment of the hearings concerning the nomination of Judge Ketanji Brown Jackson to be an Associate Justice of the Supreme Court.  Unsurprisingly, various GOP Senators extolled the importance of judges following the law and being committed to the rule of law:

Senator Grassley: "We depend on judges to interpret the laws as we write them."

Senator Cornyn: "Part of that judgment requires a judge to go where the law commands."

Senator Cruz: "Will you follow the law?" 

Senator Cotton: "I am looking for a Justice who will make decisions based on the law."

Senator Kennedy: "Sometimes Justices have to uphold the rule of law when it is not popular."

These various statement led me to reflect on my recent post about Judge Jackson's sentencings of persons involved with child pornography, and I realized that Judge Jackson’s critics have not asserted that Judge Jackson failed to follow the sentencing laws set out by Congress.  Through 18 USC § 3553(a), Congress has instructed judges in to impose a sentence "sufficient, but not greater than necessary, to comply with the purposes" of sentencing, and also demands that district judges consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Since the Booker ruling made the guidelines advisory, guideline ranges are still to be considered, but only as one of multiple statutory factors in service to a "sentencing judge’s overarching duty under §3553(a) to 'impose a sentence sufficient, but not greater than necessary' to comply with the sentencing purposes set forth in §3553(a)(2)."  Pepper v. US, 562 U.S. 476, 491 (2011).

Senator Hawley reiterated during his opening statement what seems to be his chief concern with Judge Jackson's sentencing efforts: “What concerns me, and I've been very candid about this, is that in every case, in each of these seven, Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors recommended and so I think there’s a lot to talk about there.”  Critically, applicable federal sentencing law does not call upon a judge to follow "what the federal guidelines recommended" or "what prosecutors recommended."  Indeed, a sentencing judge who adhered only to guideline or prosecutorial recommendations would arguably violate a judge's obligation of independence and the express text of the law Congress enacted to guide judges at sentencing.

Of course, "what the federal guidelines recommended" is one of many 3553(a) factors to be considered by sentencing judges and "what prosecutors recommended," though not part of the text of federal sentencing law, can still provide judges with insights concerning the proper application of all the 3553(a) factors.  But, to repeat, those recommendations are not the applicable law: Judge Jackson when on the district court was duty bound, to use Senator Cotton's words, to "make decisions based on the law" which means she had "to 'impose a sentence sufficient, but not greater than necessary' to comply with the sentencing purposes set forth in §3553(a)(2)."  Pepper, 562 U.S. at 491.  To parrot Senators Cornyn's and Kennedy's words, Judge Jackson was required at sentencing "to go where the law commands" and to "uphold the rule of law [even] when it is not popular."  Based on insights from her time on the US Sentencing Commission and her considerable judicial service, Judge Jackson surely understood the importance of all the 3553(a) factors in reaching a sentencing outcome, and nobody has suggested otherwise.

Some prior related coverage:

March 21, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

"Punishment without Trial: Why Plea Bargaining is a Bad Deal"

Go directlyThe title of this post is the title of this exciting panel discussion being hosted this week by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  It is also the title of this book authored by Professor Carissa Byrne Hessick, and she is the featured speaker at the event.  But, as detailed in this event description, the panel is full of headliners: 

When Americans think of the criminal justice system, they picture a trial. The right to a trial by jury is supposed to undergird our entire justice system – but that bedrock constitutional right has all but disappeared thanks to plea bargaining. In 2018, more than 97 percent of defendants pleaded guilty.

Join the Drug Enforcement and Policy Center for a panel discussion featuring Professor Carissa Byrne Hessick on how plea bargaining undermines justice. In her latest book, Punishment Without Trial: Why Plea Bargaining is a Bad Deal, Hessick makes the case against plea bargaining and illustrates why and how we need to fix it if we ever hope to achieve lasting criminal justice reform. 

Panelists

Carissa Byrne Hessick, Ransdell Distinguished Professor of Law, University of North Carolina School of Law; Director, Prosecutors and Politics Project
The Honorable Justice Michael Donnelly, Ohio Supreme Court
Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law, The Ohio State University Moritz College of Law
Michael Zuckerman, Visiting Assistant Professor, The Ohio State University Moritz College of Law

About the event

This is currently a hybrid event and registrants may attend in person or via Zoom. Note however, that depending on university guidance, the event may become online only. Both in-person and virtual attendees should register via the Zoom registration form and select their attendance preference there.  For in-person attendees, the event will be held in Room 244 Drinko Hall, 55 West 12th Avenue, Columbus, OH 43210-1391, and boxed lunches will be available to take away following the event.

March 21, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15)

Gearing up and rounding up before start of Senate hearing on the SCOTUS nomination of Judge Ketanji Brown Jackson

At 11am this morning, the Senate Judiciary Committee will begin hearings concerning the "Nomination of Ketanji Brown Jackson to be an Associate Justice of the Supreme Court of the United States." I believe the hearing can be watched live here via the Senate Judiciary website and here via C-SPAN.  Because of Judge Jackson's considerable criminal justice and sentencing history, I am likely to follow (and blog about?) these proceedings a bit more than some other recent SCOTUS hearing.

For lots of general coverage, How Appealing has many recent stories collected here and here and here.  Perhaps unsurprisingly, Senator Josh Hawley's criticisms of Judge Jackson attitudes toward sex offenders and those who download child pornography (first discussed here) continue to generate attention and commentary.  Here are just some of the newer pieces on this front and related issues:

From ABC News, "Fact check: Judge Ketanji Brown Jackson child porn sentences ‘pretty mainstream’"

From the National Review, "Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography"

From Reason, "Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for 'Child Predators'"

From the Wall Street Journal, "Ketanji Brown Jackson’s Hearings to Focus on Legal Experience, Record on Crime"

Here is some of my prior coverage since Judge Jackson's nomination:

March 21, 2022 in Who Sentences | Permalink | Comments (0)

Saturday, March 19, 2022

South Carolina joins handful of states authorizing firing squad as execution method

As reported in this local article, "executions by a state-approved firing squad are now able to be carried out in South Carolina." Here is more:

The S.C. Department of Corrections informed the state’s Attorney General Alan Wilson Friday that it is now able to execute death row inmates using a three-person firing squad using live ammunition if an inmate chooses that method.

The Legislature passed a law in 2021 that makes the electric chair South Carolina’s primary method of execution, but gives inmates the option to choose death by firing squad or lethal injection if available. Lethal injection has been unavailable for years in South Carolina.

The executions will be carried out at the department’s Broad River Correctional Institution outside of downtown Columbia, after the agency spent about $53,600 on supplies and materials to make the changes and comply with state law.

To carry out the execution, the agency said the firing squad will stand behind a wall and use rifles.  But the department did not specify what type of rifle or what kind of ammunition.  All firing squad members will be volunteers.  The rifles will not be visible to the witness room, and, unlike the electric chair, the witnesses will only be able to see the right side of the inmate’s profile. Witnesses will be separated from the chamber by bullet-resistant glass.

The inmate, wearing a prison-issued uniform, will be giving the opportunity to make a last statement and then will be strapped into the execution chair and a hood will be placed over their head.  A “small aim point will be placed over his heart by a member of the execution team,” at which point the warden will read the execution order and the team will fire, the department said.  When the inmate is declared dead and the curtain is moved, witnesses will be escorted out.

South Carolina has 35 inmates now on death row.  The last execution was carried out in 2011.  The state has been unable to carry out executions because it lacks the drugs necessary for the lethal injection method. In large part because of the delay, lawmakers added the firing squad option to the law.

South Carolina is now one of four states that offer the firing squad as an execution option, according to the Death Penalty Information Center. The other states are Utah, Mississippi and Oklahoma.

March 19, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (17)

"Proportionality, Constraint, and Culpability"

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

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense.  But this apparent consensus is only superficial, masking significant dissensus below the surface.  Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones.

This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment.  It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent’s culpability in relation to their wrongdoing.

March 19, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, March 18, 2022

Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month

In this post last month, I suggested it may be foolish to be obsessed with weekly federal prison population data.  But, I cannot help myself in light of the roller-coaster story of recent times: after historic federal prison population declines over the last two presidential terms (for a wide variety of reasons), the federal prison population slowly climbed through 2021 before another big drop in early 2022 with the implementation of FIRST STEP earned-time credits.

Checking in this week at the federal Bureau of Prisons updated reporting of "Total Federal Inmates," I see that we are back to the up-slope of this roller-coaster ride.  Specifically, "Total Federal Inmates," now clocks in at 154,194, nearly 1150 more prisoners than the total number of federal inmates as of just four weeks ago, February 17, 2022, when the number stood at of 153,053.  

I continue to suspect and assume this new data reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth.  But, whatever the particulars, I will not forget that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."  Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

March 18, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11)

Thursday, March 17, 2022

Contextualizing Judge Jackson's mainstream sentencing record in federal child porn cases

A tweet stream by Senator Josh Hawley about writings, comments and sentencings by SCOTUS nominee Judge Jackson has kicked off a robust discussion of her attitudes toward sex offenders and those who download child pornography (CP). Senator Hawley's tweets referenced Judge Jackson's law school Note in the Harvard Law Review and questions she asked while on the US Sentencing Commission.  What the Senator references in these tweets struck me as not especially sensational nor ultimately a strong basis for questioning her judicial temperament or philosophy.  But he thereafter discussed Judge Jackson's below-guideline sentencing decisions in CP cases when she served as a federal district judge, and I certainly consider reviews of sentencing decisions to be a fair and sound component of assessing Judge Jackson's record as a jurist.

But, to be truly fair and sound, any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.  As this recent US Sentencing Commission report explains, the CP guideline (2G2.2) "fails to distinguish adequately between more and less severe offenders" (p. 19), and "most courts believe §2G2.2 is generally too severe and does not appropriately measure offender culpability in the typical non-production child pornography case" (p. 22).  With the CP guidelines "too severe" and poorly designed to "measure offender culpability" in the digital age, federal judges nationwide rarely follow them.  Indeed, data in recent (and past) USSC reports document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases (p. 23), and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum (p. 25).

Reviewing a brief accounting of nine CP cases sentenced by Judge Jackson (which I believe was produced by GOP Senators and/or staff and was forwarded to me), I was first struck by the fact that in a majority of these cases (5 of 9) the prosecution advocated for a below-guideline sentence and in three others the prosecution advocated for only the guideline minimum.  In other words, Judge Jackson was generally sentencing CP defendants in cases in which even the prosecution concluded mitigating factors meant that the guidelines were not a proper benchmark range in light of congressional sentencing purposes.  Notably, the recent USSC report indicates that the government formally moves for a below-range sentence in roughly 1 out of every 5 CP cases (p. 23); it is not clear if prosecutors made formal motions for departures or variances in Judge Jackson's CP cases, but it is clear that in the majority of these cases the prosecutors were the ones who requested a sentence below the CP guidelines.

In the nine cases, Judge Jackson followed the prosecutors' sentencing recommendations in two cases, and sentenced below the prison term suggested by the government in seven others.  One case, US v. Hillie, distorts the average deviation from the prosecutors' recommendations, as the government there sought a sentence of 45 years and Judge Jackson imposed a sentence of "only" 29.5 years. Leaving that case out of the average, in the other eight cases, Judge Jackson's sentence was only about 1.8 years below the recommendation of prosecutors (and about .6 years above the defense recommendations).  In those cases, Judge Jackson did sentence, on average, about 54 months below the calculated guideline minimum, but that degree of reduction from the guideline minimum is almost identical to the national average reduction according to the USSC report (p. 25).

In other words, Judge Jackson's record in these CP cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties).  I use the word "mainstream" to describe Judge Jackson's sentencing patterns here because they strike me as not at all out of the ordinary; there are surely federal judges who have sentenced CP offenders more harshly, but there are also surely federal judges who have sentenced CP offenders more leniently.  Judge Jackson's sentencing record in CP cases reflects the fundamental flaws of the CP guidelines (and perhaps a relatively mitigated group of offenders she was tasked with sentencing).  As I see it, these cases do not really reveal any kind of unique or uniquely concerning sentencing jurisprudence.

There is more to say on this topic — e.g., I suspect that Judge Jackson's views in these cases were usefully informed by (1) the unanimous bipartisan USSC report authored in 2012 which stressed "the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements" and (2) the Justice Department's 2013 follow-up letter that "joined in the call for a critical review of the existing sentencing guidelines for non-production child pornography crimes" — and I suspect we will hear a lot more on this topic in the days ahead.  For now, I will conclude where the title of this post starts: if and when we properly contextualize Judge Jackson's sentencing record in federal child porn cases, it looks pretty mainstream.

March 17, 2022 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13)

"Reasonable Moral Doubt"

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

Sentencing outcomes turn on moral and evaluative determinations.  For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole.  A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty.  Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof?  A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it.  Kansas v. Carr, 577 U.S. 108, 119 (2016).  According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment.  This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons.  First, the judiciary has historically maintained neutrality on issues of significant public concern.  Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system.  For the “reasonableness” of doubt depends on context; and moral questions — "are you certain the defendant deserves death?” — make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters.  On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

March 17, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Pleased to see SCOTUS nomination of Judge Jackson bringing more attention to US Sentencing Commission

As folks gear up for next week's Supreme Court confirmation hearing in the Senate, I have been quite pleased to see a number of recent news stories focused on the US Sentencing Commission and the ways in which nominee Judge Jackson's service on the USSC might impact her work on SCOTUS.  Here is a round-up of the most recent pieces:

From Law360, "Sentencing-Commission Years Prepped Jackson for High-Court Job"

From USA Today, "Supreme Court pick Ketanji Brown Jackson could have 'profound' impact on sentencing"

From the Wall Street Journal, "Once Home to Ketanji Brown Jackson, Sentencing Commission Now Sits Quiet as Issues Go Unresolved"

The last of these pieces effectively reviews the broader concern of the USSC lacking a quorum of Commissioners for many years, while flagging how important this body could and should be while the FIRST STEP Act is still being implemented and there remains considerable bipartisan support for some forms of sentencing reform.  Here is an excerpt from the WSJ piece:

President Biden is in position to appoint the whole commission anew, when there is bipartisan support for making some aspects of federal sentencing less harsh. The president, however, hasn’t yet nominated a slate of commissioners and the White House declined to comment on when he may do so.  “The potential for the commission to do big things with the right set of people is huge,” said New York University law professor Rachel Barkow, a former commissioner.

The commission’s acting chairman and lone member, U.S. District Judge Charles Breyer, said he hopes a new commission will conduct a comprehensive review of the federal guidelines. “Science and evidence has come forward suggesting that lengthy sentences do not necessarily result in community safety,” said Judge Breyer, who will remain on the commission until the end of the year.

UPDATE: Though I wanted this post to focus mostly on the USSC, I figure an afternoon update is justified in light of more notable headlines and articles concerning Judge Jackson history and position as an historic SCOTUS nominee:

From the New York Times, "As Jackson Faces Senators, Her Criminal Defense Record Is a Target"

From The Hill, "Hawley says sentences in 10 child porn cases raise red flags on Supreme Court pick"

From Politico, "Durbin, White House slam emerging GOP attack on KBJ sex offender rulings"

From Forbes, "Americans Support Jackson’s Supreme Court Nomination 2-To-1, Study Finds"

March 17, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (7)

Wednesday, March 16, 2022

"Ruined"

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

Judges play a critical role in one of the most important states of a criminal case’s adjudication — sentencing.  While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants.  This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.”  The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

In this Article I use traditional scholarly methods of reviewing and analyzing cases and legal doctrine to show why the use of such language is harmful to victims and flouts the purposes of criminal punishment.  However, I also engage in autoethnographic methods, relying on my own experiences of rape and sexual assault, as well as prosecuting such cases. This Article considers at how other fields such as medicine and public health have approached destigmatizing other historically stigmatized conditions like substance use and mental illness, arguing that judges should take similar steps to destigmatize being a victim of rape and sexual assault by more carefully considering their language use at sentencing.  I conclude by reflecting on the use of personal narrative in legal scholarship and in the classroom and argue that it can be a powerful tool that scholars should more openly embrace.

March 16, 2022 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

US Sentencing Commission publishes 2021 Annual Report and Sourcebook of Federal Sentencing Statistics

I received news via email today that the US Sentencing Commission has now published its 2021 Annual Report and Sourcebook of Federal Sentencing Statistics. Here are the links and highlights that appeared in the USSC email:

FY21 Fast Facts

The Sourcebook presents information on the 57,287 federal offenders sentenced in FY21 (October 1, 2020 through September 30, 2021)—a sentencing caseload that decreased by more than 7,000 from the previous fiscal year.

  • Drug trafficking, immigration, firearms, and fraud crimes together comprised 83% of the federal sentencing caseload in FY21.  
  • Drug trafficking was the most common federal crime type sentenced, accounting for 31% of the caseload. 
  • Immigration cases accounted for the next largest group (30%) but decreased by more than one-third from the number of those cases in FY20. 
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% of drug cases in FY16 to 48% in FY21).
    • In FY21, Fentanyl moved into the top five drug types in the federal caseload. The Commission has added it to the Drug Offenses section of the Sourcebook
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (90 months).
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding steady from the previous year.
  • 69% of federal offenders were sentenced under the Guidelines Manual (either within range or outside the range for departure reasons in the manual). 

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY21.

  • Beginning in FY21 and continuing into FY22, the Commission has operated with only one voting commissioner, lacking the quorum required to promulgate guideline amendments. The Commission’s other statutory duties are unaffected by the lack of four voting commissioners.
  • The Commission published new findings from its largest recidivism study yet—combining Commission and FBI data to study more than 32,000 federal offenders over an 8-year follow-up period.
    • The Commission has now released reports on firearms, drug trafficking, and violent offenders with more reports forthcoming.
  • The Commission also continued to research specific issues of ongoing congressional concern and deliberation—releasing a report on the emerging problem of fentanyl and fentanyl analogues, and two reports updating its 2012 report to Congress on child pornography offenses.
  • In late September 2021, the Commission released the Judiciary Sentencing INformation (JSIN) tool—an online sentencing data resource developed for judges but made available to the public at large. The platform provides quick and easy online access to sentencing data for similarly-situated defendants, including the types of sentences imposed and average and median sentences.
  • In FY21, the Commission conducted 115 virtual training sessions and more than 13,000 individuals attended live, online, or on-demand prerecorded training sessions—a three-fold increase over the number of trainees in a typical year.

March 16, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

New Third Way report details "The Red State Murder Problem"

The "center-left" think tank Third Way has this interesting new accounting of the increase in murders in 2020 in a new report titled "The Red State Murder Problem."  I recommend the full report and its linked data, and here is an excerpt:

The US saw an alarming 30% increase in murder in 2020.  While 2021 data is not yet complete, murder was on the rise again this past year. Some “blue” cities, like Chicago, Baltimore, and Philadelphia, have seen real and persistent increases in homicides.  These cities — along with others like Los Angeles, New York, and Minneapolis — are also in places with wall-to-wall media coverage and national media interest.

But there is a large piece of the homicide story that is missing and calls into question the veracity of the right-wing obsession over homicides in Democratic cities: murder rates are far higher in Trump-voting red states than Biden-voting blue states.  And sometimes, murder rates are highest in cities with Republican mayors.

For example, Jacksonville, a city with a Republican mayor, had 128 more murders in 2020 than San Francisco, a city with a Democrat mayor, despite their comparable populations.  In fact, the homicide rate in Speaker Nancy Pelosi’s San Francisco was half that of House Republican Leader Kevin McCarthy’s Bakersfield, a city with a Republican mayor that overwhelmingly voted for Trump.  Yet there is barely a whisper, let alone an outcry, over the stunning levels of murders in these and other places.

We collected 2019 and 2020 murder data from all 50 states.  (Comprehensive 2021 data is not yet available.)  We pulled the data from yearly crime reports released by state governments, specifically the Departments of Justice and Safety. For states that didn’t issue state crime reports, we pulled data from reputable local news sources.  To allow for comparison, we calculated the state’s per capita murder rate, the number of murders per 100,000 residents, and categorized states by their presidential vote in the 2020 election, resulting in an even 25-25 split.

We found that murder rates are, on average, 40% higher in the 25 states Donald Trump won in the last presidential election compared to those that voted for Joe Biden.  In addition, murder rates in many of these red states dwarf those in blue states like New York, California, and Massachusetts.  And finally, many of the states with the worst murder rates — like Mississippi, Kentucky, Alabama, South Carolina, and Arkansas — are ones that few would describe as urban. Only 2 of America’s top 100 cities in population are located in these high murder rate states.  And not a single one of the top 10 murder states registers in the top 15 for population density.

Whether one does or does not blame Republican leaders for high murder rates, it seems that Republican officeholders do a better job of blaming Democrats for lethal crime than actually reducing lethal crime.

Of course, one does not need to be a criminologist to notice that most "red states" with high murder rates are southern states, and lots of lots of research has identified relationships between higher temperature and and higher violent crime rates. It would be quite interesting (though probably challenging) to try to run these data by comparing states and cities with comparable climates.

Though one might temper reactions to this report with an eye on temperatures, this report still provide a useful reminder (1) that crime challenges are always dynamic nationwide regardless of the political concerns of the moment, and (2) that it will often be much easier for politicians than for data scientists to claim a link between crime policies and crime.

March 16, 2022 in National and State Crime Data, Who Sentences | Permalink | Comments (21)

Tuesday, March 15, 2022

Spotlighting the new widening potential of electronic monitoring

This new Los Angeles Times op-ed authored by Kate Weisburd and Alicia Virani and headlined "The monster of incarceration quietly expands through ankle monitors," spotlights why many are concerned that electronic monitoring and other new supervision tool may expanded rather than reduce our nation's carceral footprint.  I recommend the full piece, and here are excerpts (with links from the original):

In Los Angeles County, the number of people ordered to wear electronic ankle monitors as a condition of pretrial release went up 5,250% in the last six years, according to a recent report by the UCLA Criminal Justice Program. The figure rose from just 24 individuals in 2015 to more than 1,200 in 2021.  This type of carceral surveillance is becoming the “new normal” across the U.S....

It’s widely defended as “better than jail,” but being “better than jail” does not make a criminal justice policy sound — much less humane or legal....  It’s deceptive to even compare jail and ankle monitors as though they are the only two options.  There is a third option: freedom.  In 2015 and before, L.A. judges were unlikely to order electronic monitoring as a condition of release before trial. Judges either set bail, released people on their own recognizance or ordered that people be detained in jail until trial.

Now, judges seem to be defaulting to electronic monitoring, perhaps for people who would — or should — otherwise be free. For people who would otherwise be in jail, monitoring may be preferable.  But for people who are monitored instead of being released on their own recognizance, monitoring reflects a dangerous expansion of the carceral state.

This “E-jail” entails a web of invasive rules and surveillance technologies, such as GPS-equipped ankle monitors, that allow law enforcement to tag, track and analyze the precise locations of people who have not been convicted of any crime....  The difference between E-jails and real jails is a matter of degree, not of kind.  A recent report by researchers at George Washington University School of Law details the myriad ways that monitoring undermines autonomy, dignity, privacy, financial security and social relationships when they are needed most.

Like in jail, people on monitors lose their liberty. In L.A., as elsewhere, people on monitors are forbidden from leaving their house without pre-approval from authorities days in advance.  Like in jail, people on monitors have little privacy and must comply with dozens of strict rules governing every aspect of daily life. Failing to charge the monitoring device, changing a work or school schedule without permission or making an unauthorized trip to the grocery store can land someone back in jail for a technical violation. It is hardly surprising that in L.A. County, technical rule violations, not new criminal offenses, led to more than 90% of the terminations and reincarcerations applied to people on electronic monitors.

 

Ankle monitoring also further entrenches the very racial and economic inequities that bail reform sought to address. In 2021, 84% of people on pretrial electronic monitoring in L.A. County were either Black or Latinx.  And in most places, though not in L.A., people on ankle monitors before trial are required to pay for the device.   These fees are on top of other costs, such as electric bills (to charge the monitor), cellphone bills (to communicate with the monitoring agency) and the cost of care and transportation for family members that is required because people on monitors often cannot leave home....

There is, however, some reason for optimism.  After years of community organizing, L.A. County’s Board of Supervisors recently passed a motion to develop an independent pretrial services agency within a new Justice, Care and Opportunities Department that takes over the role that probation plays in pretrial services.  This new agency has the ability and authority to end the county’s needless reliance on electronic monitoring.  We urge officials to focus on innovative solutions that rely on community-based support rather than punitive and harmful surveillance technology.

March 15, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (8)

Brennan Center reviews "The Landscape of Recent State and County Correctional Oversight Efforts"

The Brennan Center has this notable new resource on prison oversight efforts with themes captured in this subtitle: "Since 2018, many jurisdictions have tried to strengthen transparency and accountability in their correctional systems with mixed results."  Here is part of its start (with links from the original):

Correc­tional insti­tu­tions — pris­ons and jails — are considered closed facil­it­ies. Few visit­ors gain access to these institutions, even though they house people for months, years, decades, and, some­times, entire life­times. As Justice Kennedy wrote in his 2015 concurrence to the Court’s opin­ion in Davis v. Ayala, “Pris­on­ers are shut away — out of sight, out of mind,” while their condi­tions of confine­ment are “too easily ignored” by the public and the legal academy.

These insti­tu­tions are also coer­cive envir­on­ments with marked power differ­en­tials between correc­tions staff and incarcer­ated people that make facil­it­ies ripe for abuse. Because jails and pris­ons exert total author­ity over indi­vidu­als’ bodies and liberty, trans­par­ency and account­ab­il­ity are neces­sary to ensure that facil­it­ies uphold their duty of care to respect the dignity of people who are imprisoned and ensure that pris­ons are safe and secure.

One way to achieve the goals of trans­par­ency and account­ab­il­ity, while ensur­ing safe and humane condi­tions of confinement, is a formal and inde­pend­ent system of over­sight of jail and prison oper­a­tions. As the Bren­nan Center has noted before, although the U.S. has more people behind bars than any other coun­try on the planet, “it lacks a cohes­ive or integ­rated system of over­sight for its vast network of pris­ons and jails.”

The coun­try currently has about 18 entit­ies over­see­ing pris­ons, such as the Correc­tional Asso­ci­ation of New York, the John Howard Asso­ci­ation in Illinois, and the Pennsylvania Prison Soci­ety. There are also a number of inde­pend­ent agen­cies that conduct prison over­sight housed within the exec­ut­ive branch of state govern­ments, such as the Office of the Inspector General in Cali­for­nia. Addi­tion­ally, a hand­ful of inde­pend­ent entit­ies over­see local jails, such as the New York City Board of Correc­tions and the Texas Commis­sion on Jail Stand­ards. Mean­while, most state pris­ons — through their own internal account­ab­il­ity mech­an­isms — rely on monit­ors who work for the very state correc­tional agen­cies that manage these facil­it­ies. The inher­ent prob­lem in this setup is that such internal account­ab­il­ity mech­an­isms lack inde­pend­ence.

This patch­work of over­sight provides insuf­fi­cient cover­age. And the public health crisis result­ing from the highly contagious and deadly Covid-19 virus has shone a spot­light on the preval­ence of inhu­mane condi­tions of confine­ment in America’s correc­tional facil­it­ies. These condi­tions pred­ated the pandemic but worsened in many jails and pris­ons after March 2020....

Inhu­mane condi­tions of confine­ment in Amer­ica’s pris­ons and jails continue to persist, and the nation is in dire need of more prevent­at­ive and inde­pend­ent correc­tional over­sight to rein these abuses in. This resource explores the land­scape of prison and jail over­sight reform since 2018. It high­lights both progress in strength­en­ing correc­tional over­sight and failed attempts to improve monit­or­ing of condi­tions inside these insti­tu­tions.

March 15, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

New Sentencing Project report details scope of youth confinement

This new report from The Sentencing Project, titled "Too Many Locked Doors" and authored by Josh Rovner, documents the "wide and deep footprint of youth incarceration." Here is the start of its Executive SUmmary:

The United States incarcerates an alarming number of children and adolescents every year.  Disproportionately, they are youth of color.

Given the short- and long-term damages stemming from youth out of home placement, it is vital to understand its true scope. In 2019, there were more than 240,000 instances of a young person detained, committed, or both in the juvenile justice system.  However, youth incarceration is typically measured via a one-day count taken in late October.

This metric vastly understates its footprint: at least 80% of incarcerated youth are excluded from the one-day count.

This under-count is most prevalent for detained youth, all of whom have been arrested but have yet to face a court hearing. The following are examples of the systemic under-representation of detained youth in the one-day count:

• Thirty-one youths charged with drug offenses are detained for each one measured in the one-day count.

• Twenty-five youths charged with public order offenses are detained for each one measured in the one-day count.

• Seventeen youths charged with property offenses are detained for each one measured in the one-day count.

• Eleven youths charged with person offenses are detained for each one measured in the one-day count.

The variances in commitment are smaller but still noteworthy: more than three youth are committed each calendar year for each youth appearing in the one-day count.

The decade-long drop in detention and commitment masks how common detention remains for youth in conflict with the law. Hundreds of thousands of youth are referred to juvenile courts annually; roughly one-quarter of the time, they are detained.  That proportion has crept upward over a decade in which arrests have declined dramatically.

Data on youth detentions and commitment reveal sharp racial and ethnic disparities. Youth of color encounter police more often than their white peers and are disproportionately arrested despite modest differences in behavior that cannot explain the extent of arrest disparities.  Disparities in incarceration start with arrests but grow at each point of contact along the justice system continuum. In roughly one-quarter of delinquency cases throughout the decade, a youth was detained pre-adjudication. When youth of color are arrested, they are more likely to be detained than their white peers.

March 15, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (0)

Monday, March 14, 2022

"The Constitutional Guarantee of Criminal Justice Transparency"

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

This article identifies and explores a transparency guarantee that permeates the Constitution’s criminal procedure provisions.  This trans-substantive guarantee protects multiple dimensions of transparency — which I categorize as participatory, informational, and corporal — through overlapping structural safeguards and individual rights, and through protections afforded to both the public and the accused. 

Despite the strength and pervasiveness of the overarching transparency guarantee, the discrete provisions from which it is derived are often peripheral in today’s criminal justice system, which is dominated by plea bargaining and incarceration, rather than trials and public-square punishment.  And, because the constitutional transparency protections are viewed in clause-bound isolation, modern transparency deficits are generally viewed as policy problems, not constitutional ones.  I urge that renewed attention to the overarching constitutional transparency guarantee can support doctrinal and legislative efforts to strengthen criminal justice transparency in modern times.

March 14, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2022"

Wholepie22_twittercard_800x418Many folks like calling March 14 "Pi Day," and for sentencing fans today is especially worth celebrating because the amazing folks at the Prison Policy Initiative have today posted their latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report. "Mass Incarceration: The Whole Pie 2022" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in one image than just about any other single resource.  Here is part of the report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform....

The United States has the dubious distinction of having the highest incarceration rate in the world. Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change. Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral pie and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 14, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, March 13, 2022

New DOJ memo says plea agreements should generally not require waivers of compassionate release rights

In this post last month, I spotlighted the news report that some federal prosecutors had been seeking to limit defendants' statutory rights to ever seek a sentence reduction or compassionate release under Section 3582(c)(l)(A).  This new NPR piece, headlined "Justice Department ends limiting compassionate release in plea deals after NPR story," reports on the encouraging news that Main Justice has a new directive on this matter to rein in this problematic practice.  Here are the basics:

The Justice Department is directing prosecutors to stop limiting defendants' ability to seek compassionate release in most federal plea agreements, after advocates criticized the practice as cruel and against the intent of Congress.

DOJ officials handed down the order a month after an NPR story detailed the practice, which curtailed peoples' ability to petition for release from prison because of severe illness or other extraordinary circumstances.  That story drew the attention of Attorney General Merrick Garland who this week said it seemed "wrong" and pledged to fix the issue.

In a new letter, members of the U.S. Senate also expressed alarm at the waivers, which they said had been used in Arizona, Indiana, Ohio, Oklahoma, South Carolina, Tennessee, Massachusetts, Maryland, and Illinois.  "This is a particularly pernicious practice because 97 percent of convictions are obtained through plea agreements," said a new letter from Senator Brian Schatz (D-Hawaii) and 15 other lawmakers....

The lawmakers want the Justice Department to share how many people have signed federal plea deals that include those waivers. For now, they're relying on a few stories of people across the country.  One 65-year-old man in Arizona fought for months to withdraw his guilty plea after realizing it included limits to his ability to seek compassionate release. In another case, in northern California, Senior U.S. District Judge Charles Breyer called the limits "unconscionable" and "inhumane."

The new directive, obtained by NPR and signed by Deputy Attorney General Lisa Monaco, said that the majority of U.S. attorneys have not been requiring defendants to waive their rights to ask for compassionate release.  Still, she said, making the change apply nationally is important as a matter of consistency and "in the interests of justice."

"As a general matter, plea agreements should not require broad waivers of the right to file a compassionate release motion," Monaco wrote in a memo dated March 11.  Monaco added that if defendants had already entered a plea, prosecutors should "decline to enforce the waiver."  The Justice Department memo said there are "select instances" where prosecutors still may ask for a "much narrower" waiver, such as "exceptionally rare" terrorism and homicide cases.

The two-page DOJ memo to all federal prosecutors, dated March 11, 2022, is available at this link, and here is its key paragraph: 

In order to ensure a consistent practice across the Department, as well as an approach that accords with the statute, the relevant guidelines promulgated by the Sentencing Commission, and the interests of justice, the Department now issues the following guidance: As a general matter, plea agreements should not require broad waivers of the right to file a compassionate release motion under Section 3582(c)(l)(A). Specifically, prosecutors should not, as a part of a plea agreement, require defendants to waive: (1) the general right to file a compassionate release motion; (2) the right to file a second or successive such motion; or (3) the right to appeal the denial of a compassionate release.  If a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver.

Prior related posts:

March 13, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, March 12, 2022

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

March 12, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Card Carrying Sex Offenders"

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

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

March 12, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Friday, March 11, 2022

North Carolina Gov, following recommendation of state Juvenile Sentence Review Board, commutes sentence of three convicted of murder as teens

As detailed in this North Carolina Gov press release, "Governor Cooper has commuted the sentences of three people who were convicted for crimes committed when they were teenagers. The commutations follow an intensive review of their cases, including the length of their sentences, their records in prison, and their readiness to succeed outside of prison." Here is more from the press release (with links from the original):

The commutations are the first recommended to the Governor by the Juvenile Sentence Review Board which he established by Executive Order last year. The commutation applications were thoroughly reviewed by the Office of Executive Clemency, the Office of the General Counsel and the Governor.  These commutations end prison sentences on time served.

The creation of the Review Board followed the change in North Carolina law which raised the age of juvenile jurisdiction to include 16- and 17-year-olds, making North Carolina the last state in the nation to do so.  Studies of brain development and psychology show fundamental differences between juvenile and adult minds and behavior, and state and federal law treat children differently from adults for the purpose of sentencing.

The Review Board was also part of a series of recommendations from the Governor’s Task Force for Racial Equity in Criminal Justice (TREC) that has worked to rectify racial disparities in the criminal justice system. More than 80 percent of people committed to North Carolina prisons for crimes they committed as juveniles are people of color.

“North Carolina law continues to change to recognize that science is even more clear about immature brain development and decision making in younger people,” Cooper said. “As people become adults, they can change, turn their lives around, and engage as productive members of society.”

The three people whose sentences were commuted are:

  • April Leigh Barber, 46, who has served 30 years in prison for her role at age 15 in the murders of her grandparents, Lillie and Aaron Barber, in Wilkes County. While incarcerated, Ms. Barber has been consistently employed and has participated in significant programming, including earning her G.E.D. and paralegal certificate. Link to commutation.
  • Joshua McKay, 37, who has served 20 years in prison for the murder at age 17 of Mary Catherine Young in Richmond County. While incarcerated, Mr. McKay has been consistently employed, including as a carpenter and welder. Mr. McKay’s projected release date absent this commutation would have been in November 2022. Link to commutation.
  • Anthony Willis, 42, who has served 26 years in prison for the murder at age 16 of Benjamin Franklin Miller in Cumberland County. While incarcerated, Mr. Willis has been consistently employed and has completed five college degrees. Link to commutation.

The three people will be subject to post-release supervision by Community Corrections at the North Carolina Department of Public Safety to help them succeed and avoid missteps when they return to their communities.  “Most of the individuals who enter prisons will return to their communities one day. Providing high quality, evidenced based treatment and programming is a top priority for our prison system,” said Department of Public Safety Secretary Eddie Buffaloe. “These commutations should inspire individuals who are incarcerated to use all available resources to better themselves and prepare for a successful return to society.”

The Review Board continues to review petitions from those who were incarcerated for crimes committed as juveniles, and looks at many factors in its review, including rehabilitation and maturity demonstrated by the individual, record of education or other work while incarcerated, record of good behavior or infractions, input from the victim or members of the victim’s family, and more.

March 11, 2022 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Orange Is the News Blackout: The First Amendment and Media Access to Jails"

The title of this post in the title of this article recently posted to SSRN authored by Frank LoMonte and Jessica Terkovich.  Here is its abstract:

County jails are hotspots for the spread of COVID-19 infection, overlaid on top of already-existing inadequacies in medical care, overcrowding, and other substandard conditions. Yet despite the intense public interest and concern in the safe and humane operation of jails, they are among the most impenetrable places for news coverage.  A fractured U.S. Supreme Court decision, Houchins v. KQED, has left widespread uncertainty about what — if any — First Amendment right journalists and jail detainees have to speak with each other.

This Article examines and critiques the dubious constitutional logic that has left jail inmates without assurance of any practically effective method of enlisting help from the press and public to blow the whistle on unsafe jail conditions.  The Article calls for the Supreme Court to revisit its unhelpful, decades-old precedent that has emboldened jails to enact highly restrictive policies that deny detainees, many of whom have been convicted of nothing and are being held on petty “poverty charges” — any meaningful ability to speak to the news media.  The Article reports on the results of a nationwide survey of jail policies uncovering several with bizarre and constitutionally indefensible constraints, including one big-city jail that openly forbids jail inmates from discussing jail conditions with the news media.

The authors view the restrictive climate for inmate/media communications in light of contemporary developments, both legal and factual, that support comprehensively revisiting and clarifying the unhelpful Houchins standard. Legally, the landscape has changed because (1) the Court has recognized a First Amendment right to observe every critical phase of the criminal trial process, and (2) an evolving body of caselaw recognizes the right to record government employees (especially law enforcement officers) doing official business on public property.  Factually, the landscape has changed because of the well-documented problem of misuse of law enforcement authority against people of color, including within jails, which has shaken public confidence in the justice system and provoked calls for greater transparency and accountability.  These developments, the Article concludes, call for revisiting seemingly settled assumptions that prevent journalists and inmates from invoking the First Amendment to challenge even grossly overreaching jail policies that suppress whistleblowing speech.

March 11, 2022 in Prisons and prisoners | Permalink | Comments (0)

Thursday, March 10, 2022

Jussie Smollett sentenced to 150 days in jail, years of probation, $120,106 in restitution and $25,000 fine for faking attack

In this post a few months ago, I asked "Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?".  As this new AP article reports, we now know the answer to this question is "nope." Here are some details:

Jussie Smollett loudly maintained his innocence Thursday after a judge sentenced the former “Empire” actor to 150 days in jail for lying to police about a racist and homophobic attack that he orchestrated himself. Cook County Judge James Linn ordered that Smollett’s county jail sentence begin immediately following the hearing.

Smollett didn’t make a statement when offered the opportunity earlier in the afternoon but maintained that he was innocent after Linn issued his sentencing decision. He also insisted that he was not suicidal, suggesting that “if anything happens” in jail, he did not take his own life....

The judge also sentenced Smollett to 30 months of felony probation and ordered that he pay $120,106 in restitution to the city of Chicago and a $25,000 fine.

Smollett’s dramatic reaction capped an hourslong sentencing hearing. Special prosecutor Dan Webb asked Linn to include “an appropriate amount of prison time” when sentencing the actor for his conviction. Smollett’s attorneys asked the judge to limit the sentence to community service, arguing that he had already been punished by the criminal justice system and damage to his career. Family members echoed those comments....

Several supporters spoke about worries that Smollett would be at risk in prison, specifically mentioning his race, sexual orientation and his family’s Jewish heritage.

Linn said he did consider those requests for mercy, along with Smollett’s prior work and financial support of social justice organizations. But Linn also excoriated Smollett as a narcissist and pronounced himself astounded by his actions given the actor’s multiracial family background and ties to social justice work. “For you now to sit here, convicted of hoaxing, hate crimes ... the hypocrisy is just astounding,” Linn said....

Smollett faced up to three years in prison for each of the five felony counts of disorderly conduct — the charge filed for lying to police — of which he was convicted. He was acquitted on a sixth count. But because Smollett does not have an extensive criminal history and the conviction is for a low-level nonviolent crime, experts did not expect him to be sent to prison.

Thursday’s sentencing could be the final chapter in a criminal case, subject to appeal, that made international headlines when Smollett, who is Black and gay, reported to police that two men wearing ski masks beat him, and hurled racial and homophobic slurs at him on a dark Chicago street and ran off. In December, Smollett was convicted in a trial that included the testimony of two brothers who told jurors Smollett paid them to carry out the attack, gave them money for the ski masks and rope, instructed them to fashion the rope into a noose. Prosecutors said he told them what racist and homophobic slurs to shout, and to yell that Smollett was in “MAGA Country,” a reference to the campaign slogan of Donald Trump’s presidential campaign.

March 10, 2022 in Celebrity sentencings | Permalink | Comments (7)

Highlighting some disparities identified in recent "Dealing in Lives" report on federal life sentences for drug offenses

In this post a few days ago, I spotlighted this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper, titled "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020," is the focal point of this new Filter article titled "Federal Life Sentences for Drugs: Unconscionable and Massively Biased." Here is some of the coverage:

Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities.  Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent).  Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.

In addition, many people were punished more harshly for wanting to exercise their constitutional rights.  As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”

When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right.  Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes.... 

Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts — three in Florida, one in Virginia and one in South Carolina — accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period.  For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.

How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law.  That district also has some of the harshest sentencing outcomes in the country.

I am grateful to see this engagement with some of the data in the new report, and there are so many other interesting findings therein.  As mentioned previously, a number of the paper's key findings (and visuals) can be viewed at this DEPC webpage.

Prior related post:

March 10, 2022 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (12)

Vera Institute of Justice provides very latest prison data with "People in Prison in Winter 2021-2022"

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Vera's latest effort is "People in Prison in Winter 2021-22," and this press release provide context and an overview: 

Despite continued calls to release people from prisons in response to COVID-19, the total number of people in prisons declined by a mere 1.1% between December 2020 and December 2021 according to People in Prison in Winter 2021-2022, a report released today by the Vera Institute of Justice.  The winter iteration of this report highlights that, in contrast to the uniform declines of 2020, the number of people incarcerated in two out of five of the nation’s prison systems are trending upward....

While prison incarceration remains 16 percent lower than pre-pandemic levels, data shows a troubling reversal in many states.  By year-end 2021, 19 states and the federal government increased the number of people incarcerated in prisons.  Two states with large declines in their prison populations in 2020 had the largest increases in 2021 – North Dakota’s prison population declined 21.9 percent in 2020 but increased 20.6 percent in 2021, and West Virginia saw a 43.6 percent decline in 2020, then 12.9 percent growth in 2021.  The nation has not seen this kind of growth in decades: The single-year increase in North Dakota is higher than any state’s single-year increase since 1997, and the number of states with increases of more than 5 percent is the largest since 1999.

In contrast, other states continued to decrease their prison populations – Washington State’s total prison population declined 14 percent in 2021, after declining 18 percent the previous year. New York was down 10.7 percent after declining 20.8 percent in 2020, Arizona was down 10.2 percent in 2021 after a 11.1 percent decrease in 2020.

The overall number of people incarcerated by federal agencies also rose 5 percent between December 2020 and December 2021.  The number of people in Bureau of Prisons (BOP) custody rose 3.6 percent, the number of people detained for the United States Marshals Service (USMS) rose 1 percent, and Immigration and Customs Enforcement (ICE) detention jumped 33.7 percent.

“While some states made policy choices to reduce prison populations during the pandemic, the data show unmistakable backsliding by many U.S. states and the federal government,” wrote Jacob Kang-Brown, Senior Research Associate for Vera and author of the report. “The best evidence demonstrates that releasing more people from prison can help mitigate the public health harms of incarceration without jeopardizing public safety.”

March 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission releases big new report titled "Compassionate Release: The Impact of the First Step Act & COVID-19 Pandemic"

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The US Sentencing Commission indicated that is was working on a big new compassionate release report, and I am pleased to see from my email inbox that it was released today.  Here is the text about the report that was in the email I received:

The United States Sentencing Commission (“Commission”) today released a new report that examines trends in compassionate release during fiscal year 2020 in light of the enactment of the First Step Act of 2018, and the COVID-19 pandemic.

Senior U.S. District Judge Charles R. Breyer, Acting Chair of the Commission, stated “I am pleased that the Commission has issued this comprehensive report on compassionate release trends in fiscal year 2020. This report builds on the Commission’s significant work in this area, including a report on the first year of implementation of the First Step Act and the Commission’s previously released quarterly data reports analyzing motions for compassionate release.”

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019 — the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”

This full USSC report, available here, runs 86 pages and I hope to find time in the coming days to highlight a variety of findings from the report. The USSC has created this two-page infographic about the report with a few data highlights, and this USSC webpage provides an overview and an extended list of "key findings."

Though I am VERY excited to dig into this report and look forward to exploring what lessons these data may have for any possible revision of guidelines and practices related to compassionate release, I am a bit disappointed that this new USSC report only covers developments and data through September 2020.  Though these data capture the many developments through the first part of the COVID pandemic, there still had then not been any significant circuit rulings about the operation of compassionate release and other USSC data runs have detailed that there were an additional 10,000 motions and about 1500 addition compassionate release grants in just the six months after September 2020.  I fully understand why the USSC could not do this kind of detailed report on all cases up to the present, but everyone should not lose sight of the fact that this new report is already somewhat dated because it only captures data through September 2020.

March 10, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, March 9, 2022

"Does Mens Rea Matter?"

The title of this post is the title of this fascinating new article now available via SSRN authored by Matthew Mizel, Michael Serota, Jonathan Cantor and Joshua Russell-Fritch. Here is its abstract:

Does mens rea matter to the criminal legal system?  Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute.  We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g).  Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g) — whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories — as a question of fact for which an actor could be held strictly liable.  Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month.

We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion.  At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it.  All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.

March 9, 2022 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Some notable headlines about the state and possible fate of capital punishment in the US

I have seen an array of notable news and commentary concerning the administration of the death penalty this week, enough to justify this round up:

From The Atlantic, "A Good Man, At One Time: How a Mississippi inmate became an advocate for his own execution"

From CommonWealth, "Tsarnaev again faces death penalty, but support for capital punishment dropping"

From the Death Penalty Information Center, "Tennessee Sets Three Execution Dates for Most-in-Nation 5 Pending Executions in 2022"

From The Hill, "Reinstatement of marathon bomber's death sentence exposes Democrats' need to hide radicalism"

From The Intercept, "RUSH TO JUDGMENT: Is Texas Sending Melissa Lucio to Die for a Crime That Never Happened?"

From the Ohio Capital Journal, "Ohio gets closer to abolishing death penalty"

From the New York Times, "This Sedative Is Now a Go-To Drug for Executions. But Does It Work?"

From Verdict, "As Oklahoma Goes, So Goes America’s Death Penalty?"

From Vox, "Why some Republicans are turning against the death penalty"

March 9, 2022 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

"Prosecutorial Nonenforcement and Residual Criminalization"

The title of this post is the title of this notable new article on SSRN authored by Justin Murray.  Here is its abstract:

In recent years a small but influential group of locally elected prosecutors committed to criminal justice reform have openly refused to enforce various criminal laws — laws prohibiting marijuana possession, sentence enhancements, laws authorizing the death penalty, and much more — because they see those laws as unjust and incompatible with core reform objectives.  Condemned by many on the political right for allegedly usurping the legislature’s lawmaking role and praised by many on the left for bypassing dysfunctional state legislatures in favor of local solutions, these prosecutorial nonenforcement policies are commonly said to have the same effect as nullifying, or even repealing, the laws that they leave unenforced.

Yet this idea — the idea that prosecutorial nonenforcement is functionally equivalent to the nullification or repeal of statutory law — is deeply mistaken.  This Essay shows why.  It uncovers a number of underappreciated mechanisms through which criminal laws may continue to get enforced or to structure social relations despite a district attorney’s policy against enforcing them, producing what this Essay calls residual criminalization.  The Essay also explains why grappling with this phenomenon of residual criminalization can help reframe ongoing discussions concerning prosecutorial nonenforcement by, on one hand, deflating certain prominent objections to nonenforcement and, on the other hand, revealing that nonenforcement cannot by itself satisfy criminal justice reformers’ deeper aspirations.

March 9, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 8, 2022

Rounding up some accounts of the latest ACCA wackiness in Wooden

I hope to find some time in the coming days to do some original commentary about the Supreme Court's unanimous ruling in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  I see interesting, telling and problematic aspects to all the opinion in the case, but for now I need to be content here to round up some of what others are saying:

From Law360, "'Night Of Crime' Burglar Is No Career Criminal, Justices Say"

From Slate, "Why All Nine Justices Overturned a Ludicrously Cruel Prison Sentence"

From SCOTUSBlog, "Perhaps defining an “occasion” is not so difficult after all"

From The Volokh Conspiracy, "Justices Spar Over How to Interpret the Armed Career Criminal Act"

March 8, 2022 in Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?

As reported in this AP piece, headlined "1st trial in Capitol riot ends with conviction all counts," we now have  a new conviction in the January 6 riot cases that can perhaps reveal some of the sentencing consequences of going to trial rather than pleading guilty.  Here are the basic details:

A Texas man was convicted on Tuesday of storming the U.S. Capitol with a holstered handgun, a milestone victory for federal prosecutors in the first trial among hundreds of cases arising from last year’s riot.

A jury also convicted Guy Wesley Reffitt of interfering with police officers who were guarding the Capitol on Jan. 6, 2021, and of obstructing justice for threatening his two teenage children if they reported him to law enforcement after the attack. Jurors deliberated about three hours and convicted him on all counts.

The verdict could be a bellwether for many other Capitol riot cases. It could give Justice Department prosecutors more leverage in plea negotiations and discourage other defendants from gambling on trials of their own. Reffitt, 49, of Wylie, Texas, didn’t testify at his trial, which started last Wednesday. He didn’t visibly react to the verdict, but his face was covered by a mask.

During the trial’s closing arguments on Monday, Assistant U.S. Attorney Risa Berkower told jurors that Reffitt drove to Washington, D.C., intending to stop Congress from certifying President Joe Biden’s electoral victory.  Reffitt proudly “lit the fire” that allowed others in a mob to overwhelm Capitol police officers near the Senate doors, the prosecutor said.

Reffitt was not accused of entering the Capitol building.  Defense attorney William Welch said there is no evidence that Reffitt damaged property, used force or physically harmed anybody.  The defense lawyer urged jurors to acquit Reffitt of all charges but one: He said they should convict him of a misdemeanor charge that he entered and remained in a restricted area.

Reffitt faced a total of five counts: obstruction of an official proceeding, being unlawfully present on Capitol grounds while armed with a firearm, transporting firearms during a civil disorder, interfering with law enforcement officers during a civil disorder, and obstruction of justice.

Jurors saw videos that captured the confrontation between a few Capitol police officers and a mob of people, including Reffitt, who approached them on the west side of the Capitol. Reffitt was armed with a Smith & Wesson pistol in a holster on his waist, carrying zip-tie handcuffs and wearing body armor and a helmet equipped with a video camera when he advanced on police, according to prosecutors. He retreated after an officer pepper sprayed him in the face, but he waved on other rioters who ultimately breached the building, prosecutors said.

Before the crowd advanced, Reffitt used a megaphone to shout at police to step aside and to urge the mob to push forward and overtake officers. Assistant U.S. Attorney Jeffrey Nestler said Reffitt played a leadership role that day. During last Friday’s testimony, prosecutors zoomed in on a video image of Reffitt at the Capitol. FBI Special Agent Laird Hightower said the image shows “a silvery metallic linear object” in a holster protruding from under Reffitt’s jacket as he leaned forward....

Reffitt’s 19-year-old son, Jackson, testified last Thursday that his father threatened him and his sister, then 16, after he drove home from Washington. Reffitt told his children they would be traitors if they reported him to authorities and said “traitors get shot,” Jackson Reffitt recalled. Jackson Reffitt, then 18, said the threat terrified him. His younger sister, Peyton, was listed as a possible government witness but didn’t testify....

More than 750 people have been charged with federal crimes related to the riot.  Over 220 of them have pleaded guilty, mostly to misdemeanors. and over 110 of them have been sentenced. Approximately 90 others have trial dates.

This AP description of Reffitt's behaviors makes him sound like a more serious offender that some of those prosecuted for Jan 6 activities. but also less serious than some others.  I will be interested to see how guideline calculations and sentencing arguments play out for Reffitt in the months ahead.

Some of many prior related posts:

March 8, 2022 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13)

A deep dive into federal prison struggles in response to the COVID pandemic

NPR has this lengthy new piece headlined "As COVID spread in federal prisons, many at-risk inmates tried and failed to get out," that effectively chronicles some of the ineffectiveness of the federal response as COVID worked its way through its massive prison systems.  Here are just a few snippets from the piece:

As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons.  Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.

The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic.  Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.

Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found.  Many of them seemed to sense their fate — and had tried to get out.  And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus....

It's difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.  "Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late," said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif....

The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority.  After [then Attorney General] Barr urged the use of home confinement, the BOP added its own criteria to the attorney general's list.

Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic.  As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.

It's unclear how many more people might have been eligible for CARES Act home confinement yet were not released. "CARES Act home confinement is, frankly, a black box," [Allison] Guernsey, of the University of Iowa, said. But she feels certain "we could have been releasing so many more people during the pandemic and we just chose not to."

March 8, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 7, 2022

"Plea Bargaining and Mass Incarceration"

The title of this post is the title of this recent paper authored by Albert Alschuler available via SSRN.  Here is its abstract:

The United States, which imprisons a higher proportion of its population than any other nation, is also the nation most dependent on plea bargaining.  This Article shows that plea bargaining was a major cause of mass incarceration. Bargaining not only increased the number of people sent to prison but also produced harsher sentences than would have existed in its absence.

American incarceration rates rose sharply just after the Supreme Court and the American Bar Association declared plea bargaining legitimate and beneficial. This Article shows how courts and legislatures then enhanced the power of prosecutors and how prosecutors used their power to charge more people with crimes, induce more guilty pleas, exact broader waivers of rights, and obtain more severe sentences.

March 7, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling

The US Supreme Court handed down one opinion this morning, and it is a win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Here is how Justice Kagan's opinion for the Court gets started:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary — one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA).  That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” 18 U.S.C. §924(e)(1).  The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously.  The answer is no.  Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.

Interestingly, this ruling also generated four distinct concurrences (some quite short, some longer). Because I need to be off-line most of the rest of today, I will not have a chance to comment on these opinions right away. But I hope commenters might help me try to map out how many hundreds (thousands?) of cases this ruling could impact.

March 7, 2022 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (13)

Sunday, March 6, 2022

"Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020"

I am extraordinarily pleased and proud to be able spotlight this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC).  The paper shares the title of this post, and the work is an extraordinary compilation and examination of federal drug life sentence.  Here is the paper's abstract:

The “tough on crime” era of the 1980’s and 1990’s ushered in a growing reliance on prisons, the ratcheting up of sentence lengths, and a broader expansion of the criminal justice system.  Life sentences, historically rarely imposed, became increasingly commonplace in the 1980s through the 2000s, contributing to the ballooning imprisoned population. While there are growing concerns about the increased use of life sentences in the United States, there has been limited empirical study of these sentences.  This report seeks to fill this gap with a particular focus on the federal sentencing system and the imposition of life sentences for drug offenses.  Specifically, the current report documents federal life sentences imposed for drug trafficking over the last three decades, taking a closer look at the defendant and case-specific characteristics, and providing a descriptive account of the factors that are associated with those sentenced to life in prison in federal courts.

At this DEPC webpage, a number of the paper's key findings (and visuals) can be viewed.  Here is the first one:

Key Finding 1:  After record highs in the 1990s and 2000s, the number and rate of life and de facto life sentences imposed have declined significantly over the last decade.

March 6, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment | Permalink | Comments (3)

Saturday, March 5, 2022

New Federal Sentencing Reporter double issue explores "Financial Sanctions in Sentencing and Corrections"

I am very pleased to now be able to spotlight the newest Federal Sentencing Reporter issue, which is actually a special double issue devoted to the topic "Financial Sanctions in Sentencing and Corrections: Critical Issues, Innovations, and Opportunities." This amazing issue has nearly two dozen article authored by more than three dozen leading academics and researchers. 

Professors Jordan Hyatt and Nathan Link deserve worlds of credit for putting this amazing issue together, and their "Editors’ Observations"  which introduces the issue is titled "The Cost of Financial Sanctions in Sentencing and Corrections: Avenues for Research, Policy, and Practice." Here is its abstract:  

Financial and monetary obligations, a class of sanctions that includes fines, restitution, and a range of fees, are increasingly recognized as playing a significant role in the operation of the justice system, the lives of the people against whom they are levied, and their communities.  While some financial sanctions play a role in the tailoring of a punishment to the particular individual and the offenses they have been convicted of, others lack this grounding in ideology and serve a more pragmatic- and potentially revenue-driven-goal.  These observations reflect on the current state of research and policy regarding financial sanctions and seek to identify meaningful gaps in the current knowledge base as a foundation for future inquiry.

I highly recommend the full double issue.

March 5, 2022 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

"Algorithm v. Algorithm"

286-2869560_spy-vs-spy-clipart-2-by-thomas-white-spy-black-spyThe title of this post is the title of this new Duke Law Journal article authored by Cary Coglianese and Alicia Lai. Though not discussing sentencing at length, regular readers know of the many ways the algorithm debate has purchase for the criminal justice system. (In addition, the title of the article reminded me of a cartoon from my youth noted here.) Here is the abstract:

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias.  A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making.  The human brain operates algorithmically through complex neural networks.  And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes.

Yet these human algorithms undeniably fail and are far from transparent.  On an individual level, human decision-making suffers from memory limitations, fatigue, cognitive biases, and racial prejudices, among other problems. On an organizational level, humans succumb to groupthink and free riding, along with other collective dysfunctionalities. As a result, human decisions will in some cases prove far more problematic than their digital counterparts.  Digital algorithms, such as machine learning, can improve governmental performance by facilitating outcomes that are more accurate, timely, and consistent. 

Still, when deciding whether to deploy digital algorithms to perform tasks currently completed by humans, public officials should proceed with care on a case-by-case basis.  They should consider both whether a particular use would satisfy the basic preconditions for successful machine learning and whether it would in fact lead to demonstrable improvements over the status quo.  The question about the future of public administration is not whether digital algorithms are perfect.  Rather, it is a question about what will work better: human algorithms or digital ones.

March 5, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, March 4, 2022

Voting 6-3, SCOTUS reinstates vacated death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

The Supreme Court this morning handed down its ruling in US v. Tsarnaev, No. 20-443 (S. Ct. March 4, 2022) (available here).  When the US Supreme Court back in March 2021 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, the smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looked even smarter after the Supreme Court oral argument in October 2021 which revealed a predictable ideological split and strongly suggested a majority of Justices were inclined to reinstate Tsarnaev's death sentence.  Here is how Justice Thomas's opinion for the Court gets started:

On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon.  The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds.  Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle.  Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted.

A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse.

Justice Barrett authored a concurrence joined by Justice Gorsuch which starts this way:

In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.

I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place.

Justice Breyer authored the sole dissent, which was joined by Justice Sotomayor and mostly by Justice Kagan.  It starts this way:

During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings.  Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership.  In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence.  The Court of Appeals held that the District Court abused its discretion by doing so. 968 F. 3d 24, 73 (CA1 2020).

This Court now reverses the Court of Appeals.  In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.

March 4, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (35)