Wednesday, April 6, 2022

Remaining (overly?) upbeat about bipartisan criminal justice reform

Marc Levin has this notable new Hill commentary, headlined "Confirmation combat can’t crush bipartisan criminal justice reform," making an important case for staying bulling on the prospects for bipartisan criminal justice reform efforts.  I recommend the piece in full, and here are excerpts:

The “soft on crime” critique of Judge Ketanji Brown Jackson has prompted obituaries for the era of bipartisan support for criminal justice reform, a détente that the country has enjoyed since Texas kicked off a wave of policy change 15 years ago.  While the coalition may be fragile, the prospects remain encouraging for continued progress on both public safety and justice.

Optimism stems in part from the fact that the primary responsibility for criminal justice policy rests at the state level, and the most significant reforms continue to occur there. Indeed, it was state-level reforms that first led to prison closures and reduced recidivism through treatment courts and other alternatives to incarceration, including in red states like Texas and Georgia. Those advancements, in turn, inspired the federal First Step Act signed by President Trump in 2018, a law that pared back mandatory minimum sentences for drug crimes and allowed low-risk individuals to shave time off their prison terms by completing rehabilitative programs.

Today, state legislators remain the most significant actors in this arena, given that about 90 percent of all criminal cases and incarcerated populations are at the state and local levels. In Oklahoma, which has the nation’s highest incarceration rate, a bipartisan measure that brings consistency and proportionality to sentencing for nonviolent offenses overwhelmingly passed the state’s Senate on March 23.... Another red state, Ohio, is advancing a handful of significant bipartisan criminal justice reforms in its current legislative session....

While continued momentum on the state level promises to have the most far-reaching impact on the justice system, strong possibilities remain this election year for bipartisan congressional action.  One area with potential for progress is marijuana policy. There are a variety of proposals for unwinding failed federal policy on cannabis with varying levels of bipartisan support....

Also, in recent weeks, additional Republican senators have become cosponsors of a bill that would end the pronounced disparity in penalties between crack and powder cocaine, which would affect some 1,500 new sentences every year....  Other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.

Undoubtedly, the recent rise in some types of violent crime, most notably homicides, has strained bipartisan coalitions around sensible reforms. While fearmongering is unwarranted, rigorously evaluating the impact of recent justice system changes is not just desirable, but necessary....

Criminal justice policy is too important to leave to any one political party, and all Americans, regardless of ideology, rightly demand a system that protects both their lives and liberties. While hearings for both Republican and Democratic administration Supreme Court nominees have become circus-like, there is reason to believe that our political leaders can move from confirmation combat to considerable consensus on the next steps to achieve safety and justice for all.

This commentary effectively highlights that there is still continued momentum for some forms of criminal justice reforms on both sides of the aisle at both the state and federal levels. But, even before the SCOTUS confirmation hearings, a pandemic-era spike in homicides and other crimes concerns were already creating headwinds for many reform efforts. And the SCOTUS hearings served as a significant reminder that "tough/soft on crime" rhetoric can often still quickly become a central part of the modern political atmosphere. How these matters play out in our politics and policy-making in the months and years to come is going to be important and interesting to watch closely.

April 6, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

New letter from House CBC members urges EQUAL Act Senate floor vote ASAP

As detailed in this press release, all House Members of the Congressional Black Caucus sent a letter this week "calling on Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chairman Dick Durbin to bring H.R. 1693, the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act to the Senate floor for a vote."  Here is part of the text of the letter:

As you know, in 1986, Congress passed the Anti-Drug Abuse Act, which established a 100:1 sentencing disparity for crack and powder cocaine.  Over the years, this policy has been widely criticized for lacking scientific and penological justification.  Accordingly, Congress has taken steps to address this problem through the passage of the bipartisan Fair Sentencing Act of 2010, which reduced the disparity from 100:1 to 18:1, and the bipartisan First Step Act of 2018, which made those changes retroactive.  Both efforts made our drug sentencing laws fairer, but the work is not done as long as a significant and harmful disparity remains.

The impacts of these policies on communities of color across the country have been devastating.  According to the U.S. Sentencing Commission, in Fiscal Year 2020, 77.1% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic.  Put simply, this law is unjust, unconscionable and unacceptable.  It is time to eliminate this disparity once and for all.  

That is why we write in support of bringing the EQUAL Act (H.R. 1693/S. 79) to the Senate Floor for consideration as soon as possible.  It would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.  According to a recent analysis from the U.S. Sentencing Commission, approximately 827 individuals would benefit from the prospective section of the bill each year, and 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on the retroactive section.  In total, the EQUAL Act will reduce excessive prison time by 67,800 years, and 91 percent of the individuals who will get this critical relief are Black.

A few of many prior posts on the EQUAL Act:

April 6, 2022 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 5, 2022

Brennan Center concludes is terrific essay series titled "Punitive Excess"

In this post last year, I was pleased to spotlight a new essay series unveiled by the Brennan Center for Justice, titled "Punitive Excess."  Today, I received an email noting that the series in concluding in an exciting way (links from the original):

Today the Brennan Center for Justice at NYU Law published the final essay plus a new video (90-second version here) in its Punitive Excess series.  The video includes voices from the essay collection, each showing a different way that the American legal system takes punishment to the extreme. Asia Johnson and Shon Hopwood speak from personal experience with being behind bars. In the last essay for the series, criminal justice experts Jeremy Travis and Bruce Western propose an “honest reckoning” with the harms of punitive excess as the path to a “new vision of justice that promotes community well-being, not oppression, and celebrates democracy, not racial domination.”...

The series will be published as a book by Columbia University Press. Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program, co-edited the series with Daniel Okrent.

April 5, 2022 in Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

With SCOTUS nominee now on path to confirmation, time to fret again about the lack of USSC nominees from Prez Biden

As we approach a full 15 months into the Biden Administration, I must yet again return to expressing my frustration that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for the better part of five years, and the USSC has not had complete set of commissioners in place now for nearly a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional for now three+ years since that law's enactment.

Though I harped on this front a lot last year, I did not complain too much recently about the persistent lack of nominees while the Biden Administration was selecting and seeking the confirmation of a replacement for US Supreme Court Justice Breyer.  But, after yesterday's developments (news here), it seem quite clear that Judge Ketanji Brown Jackson will be confirmed to replace Justice Breyer.  So, with this SCOTUS transition now seemingly settled, I will return to full-time fretting about the lack of USSC nominees from Prez Biden.

I have heard buzz from a variety of sources leading me to believe a slate of nominations could be imminent.  These nominations cannot come soon enough, especially given that already three month have passed since Justice Sotomayor, joined by Justice Barrett, issued a statement respecting the denial expressing "hope in the near future the Commission will be able to resume its important function in our criminal justice system."  As all my posts below detail, I have shared this hope, so far still unfulfilled, for quite some time.

One of many reasons sentencing fans should now hope for imminent nominations for the US Sentencing Commission is the inherently uncertain (and political) nature of the confirmation process.  I am hopeful that, because nominations to the USSC have to be bipartisan, there will be Senators from both parties eager to move the eventual nominees through the confirmation process efficiently.  But I am perhaps naive to believe that good government functioning could come before possible political opportunism in this setting (especially during an election year).  Moreover, even if the confirmation process goes quickly and smoothly, the process is still likely to take months, while more than a thousand federal defendants are getting sentenced in federal courts every week. 

A few of many prior related posts:

April 5, 2022 in Criminal justice in the Biden Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Might Texas be on the verge of executing an innocent woman?

The question in the title of this post is prompted by this AP article discussing the case of Melissa Lucio, who is scheduled to be executed by the state of Texas in three weeks.  Here are excerpts:

During hours of relentless questioning, Melissa Lucio more than 100 times had denied fatally beating her 2-year-old daughter. But worn down from a lifetime of abuse and the grief of losing her daughter Mariah, her lawyers say, the Texas woman finally acquiesced to investigators. “I guess I did it,” Lucio responded when asked if she was responsible for some of Mariah's injuries.

Her lawyers say that statement was wrongly interpreted by prosecutors as a murder confession — tainting the rest of the investigation into Mariah’s 2007 death, with evidence gathered only to prove that conclusion, and helping lead to her capital murder conviction. They contend Mariah died from injuries from a fall down the 14 steps of a steep staircase outside the family’s apartment in the South Texas city of Harlingen.

As her April 27 execution date nears, Lucio’s lawyers are hopeful that new evidence, along with growing public support — including from jurors who now doubt the conviction and from more than half the Texas House of Representatives — will persuade the state’s Board of Pardons and Paroles and Gov. Greg Abbott to grant an execution reprieve or commute her sentence....

Lucio's lawyers say jurors never heard forensic evidence that would have explained that Mariah's various injuries were actually caused by a fall days earlier. They also say Lucio wasn't allowed to present evidence questioning the validity of her confession.

The Texas Attorney General’s Office maintains evidence shows Mariah suffered the “absolute worst” case of child abuse her emergency room doctor had seen in 30 years. “Lucio still advances no evidence that is reliable and supportive of her acquittal,” the office wrote in court documents last month....

Lucio, 53, would be the first Latina executed by Texas and the first woman since 2014. Only 17 women have been executed in the U.S. since the Supreme Court lifted its ban on the death penalty in 1976, most recently in January 2021.

In their clemency petition, Lucio’s lawyers say that while she had used drugs, leading her to temporarily lose custody of her children, she was a loving mother who worked to remain drug-free and provide for her family. Lucio has 14 children and was pregnant with the youngest two when Mariah died....

In 2019, a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned Lucio’s conviction, ruling she was deprived of “her constitutional right to present a meaningful defense.” However, the full court in 2021 said the conviction had to be upheld for procedural reasons, “despite the difficult issue of the exclusion of testimony that might have cast doubt on the credibility of Lucio’s confession.”

Three jurors and one alternate in Lucio’s trial have signed affidavits expressing doubts about her conviction. “She was not evil. She was just struggling. ... If we had heard passionately from the defense defending her in some way, we might have reached a different decision,” juror Johnny Galvan wrote in an affidavit.

In a letter last month to the Board of Pardons and Paroles and to Abbott, 83 Texas House members said executing Lucio would be “a miscarriage of justice.”...

Abbott can grant a one-time, 30-day reprieve. He can grant clemency if a majority of the paroles board recommends it. The board plans to vote on Lucio’s clemency petition two days before the scheduled execution, Rachel Alderete, the board’s director of support operations, said in an email. A spokeswoman for Abbott’s office did not return an email seeking comment.

Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015. Whitaker was convicted of masterminding the fatal shootings of his mother and brother. His father, who survived, led the effort to save Whitaker, saying he would be victimized again if his son was executed. Lucio’s supporters have said her clemency request is similar in that her family would be retraumatized if she’s executed.

April 5, 2022 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 4, 2022

"No Check We Won't Write: A Report on the High Cost of Sex Offender Incarceration"

The title of this post is the title of this new article in the journal Sexual Abuse authored by Elizabeth Letourneau, Travis Roberts, Luke Malone and Yi Sun. Here is its abstract:

Child sexual abuse is a preventable public health problem that is addressed primarily via reactive criminal justice efforts.  In this report, we focus on the cost of incarcerating adults convicted of sex crimes against children in the United States.  Specifically, we summarize publicly available information on U.S. state and federal prison and sex offender civil commitment costs.  Wherever possible, we used government data sources to inform cost estimates.  Results indicate the annual cost to incarcerate adults convicted of sex crimes against children in the United States approaches $5.4 billion.  This estimate does not include any costs incurred prior to incarceration (e.g., related to detection and prosecution) or post-release (e.g., related to supervision or registration).  Nor does this estimate capture administrative and judicial costs associated with appeals, or administrative costs that cannot be extricated from other budgets, as is the case when costs per-prisoner are shared between prisons and civil commitment facilities.  We believe information on the substantial funding dedicated to incarceration will be useful to U.S. federal, state, and local lawmakers and to international policymakers as they consider allocating resources to the development, evaluation and dissemination of effective prevention strategies aimed at keeping children safe from sexual abuse in the first place.

April 4, 2022 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (10)

SCOTUS, via 6-3 ruling in Thompson v. Clark, clarifies requirements for certain § 1983 claims for malicious prosecution

The Supreme Court handed down one opinion this morning, and it concerns criminal justice issues.  Justice Kavanaugh wrote the relatively short opinion (12 pages) for the Court in Thompson v. Clark, No. 20-659 (S. Ct. April 4, 2022) (available here), and it begins this way:

Larry Thompson was charged and detained in state criminal proceedings, but the charges were dismissed before trial without any explanation by the prosecutor or judge.  After the dismissal, Thompson alleged that the police officers who initiated the criminal proceedings had “maliciously prosecuted” him without probable cause.  App. 33–34.  Thompson sued and sought money damages from those officers in federal court. As relevant here, he advanced a Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution.

To maintain that Fourth Amendment claim under §1983, a plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution.  Cf. Heck v. Humphrey, 512 U.S. 477, 484, and n. 4 (1994).  This case requires us to flesh out what a favorable termination entails.  Does it suffice for a plaintiff to show that his criminal prosecution ended without a conviction?  Or must the plaintiff also demonstrate that the prosecution ended with some affirmative indication of his innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient?

We conclude as follows: To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction.  Thompson satisfied that requirement in this case.  We therefore reverse the judgment of the U.S. Court of Appeals for the Second Circuit and remand for further proceedings consistent with this opinion.

Justice Alito also wrote a 12-page opinion as a dissent, and it was joined by Justices Thomas and Gorsuch.  Here is how it starts:

Homer described the mythical chimera as a “grim monster” made of “all lion in front, all snake behind, all goat between.” The Iliad p. 201 (R. Fagles trans. 1990).  Today, the Court creates a chimera of a constitutional tort by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim.

The Court justifies this creation on the ground that malicious prosecution is the common-law tort that is most analogous to an unreasonable seizure claim.  And because a common-law malicious-prosecution claim demanded proof of a favorable termination, the Court holds that its new creation includes that element.  But this Court has never held that the Fourth Amendment houses a malicious-prosecution claim, and the Court defends its analogy with just two sentences of independent analysis and a reference to a body of lower court cases.

I cannot agree with that approach.  The Court’s independent analysis of this important question is far too cursory, and its reliance on lower court cases is particularly ill-advised here because that body of case law appears to have been heavily influenced by a mistaken reading of the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994).

What the Court has done is to recognize a novel hybrid claim of uncertain scope that has no basis in the Constitution and is almost certain to lead to confusion.

April 4, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

No new SCOTUS cert grants, though three Wooden GVRs highlights ACCA's remaining wackiness

Based on a notable number of criminal law relists flagged here at SCOTUSblog by John Elwood, I was hoping there might be something interesting for sentencing fans on this morning's Supreme Court order list.  But the Justices today added no new cases to the SCOTUS docket. 

The Justices did GVR (grant, vacate, remand) three cases based on Wooden v. US (basics here, analysis here), which I suppose serves as a reminder that all federal courts will continue to struggle with how to apply the the Armed Career Criminal Act (ACCA) for the foreseeable future.  Sigh.  (A comment over at SCOTUSblog amusingly asked "Does sending back 3 cases for Wooden in the same order list count as one incident?"  The lawprof in me wants to correct the question to say "one occasion," but anyone who read this far likely gets the ACCA joke.)

April 4, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, April 3, 2022

"Invisible Victims"

the title of this post is the title of this intriguing recent paper authored by Mihailis Diamantis that I just found on SSRN.  Here is its abstract:

The halls of justice are forever closed to many who suffer grievous wrong.  They need not have done anything to forfeit their claim.  No matter how certain the evidence is or how eager prosecutors may be, no criminal court will admit them.  These victims are, for all intents and purposes, invisible to the criminal law.

Invisible victims exist because of doctrines that shield certain categories of people from any criminal justice inquiry.  These people include those whose alleged misdeeds occurred long ago, diplomats, legislators, pardon recipients, and the deceased, among many others.  Immunizing such individuals from criminal sanction often makes sound policy sense.  But criminal law has yet to reckon with the moral cost of deferring unconditionally to their interests.

This Article offers a more balanced approach.  Criminal law should permit courts to try suspects who are immune from punishment.  Trial could memorialize invisible victims’ narratives in the solemn forum of the courtroom.  Where the evidence warrants, juries could validate invisible victims by condemning the wrongs they suffered.  Familiar procedural safeguards could protect unpunishable suspects’ weightiest interests even as invisible victims finally receive the recognition they deserve.

April 3, 2022 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2)

Another round of highlights from among many great new Inquest essays

It has now been a few months since my last blog posting highlighting piece from Inquest, "a decarceral brainstorm," but that is not a reflection of that site lacking lots of new must-read essays.  Indeed, there is so much new and important content, I am not sure how anyone can keep up.  For now, here I will spotlight a handful of the many recent pieces worth checking out (with, of course, an emphasis on sentencing and corrections topics):

From Piper Kerman, "Burn the Spot: Writing about people you encounter in prison carries special responsibilities."

From Matthew Caldwell, "The End of Public Defenders: One path to ending mass incarceration is ending our modern conception of public defense. And being transparent about our work is one way to start."

From Caits Meissner, "Finishing Sentences: Writing about the harms of the penal system from within it is a form of freedom-fighting. It is not without risks — and many rewards."

From Ariel Nelson & Stephen Raher, "Captive Consumers: How government agencies and private companies trap and profit off incarcerated people and their loved ones."

April 3, 2022 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, April 2, 2022

"The Trouble with Time Served"

The title of this post is the title of this new article recently posted to SSRN and authored by Kimberly Kessler Ferzan. Here is its abstract:

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial.  In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice.  In fact, however, crediting detainees for time served is perverse.  It harms the innocent.  A defendant who is found not guilty, or whose case is dismissed, gets nothing.  Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive.  Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions.  The bottom line is this: Time served is not a panacea.  To the contrary, it contributes to criminal justice pathologies.

This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted.  The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds.  Time served should be abandoned.  Detainees should be financially compensated instead.  Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms.  Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.

April 2, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Friday, April 1, 2022

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

April 1, 2022 in Clemency and Pardons, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.

April 1, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Thursday, March 31, 2022

BJS releases new report on "Correctional Populations in the United States, 2020 – Statistical Tables"

I just noticed that last week the Bureau of Justice Statistics released a new accounting of correctional populations in this document titled ""Correctional Populations in the United States, 2020 – Statistical Tables." The first page of the 14-page document provides this overview and "highlights":

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails. 

  • About 7 in 10 persons under correctional supervision were supervised in the community (3,890,400) at yearend 2020, while about 3 in 10 (1,691,600) were incarcerated in a state or federal prison or local jail.
  • The decline in the correctional population during 2020 was due to decreases in both the community supervision population (down 276,700 or 6.6%) and the incarcerated population (down 294,400 or 18.9%).
  • From 2010 to 2020, the correctional population decreased 22.4% (down 1,588,400 persons).
  • From 2010 to 2020, the decrease in the probation population accounted for 63.1% of the total decline in the correctional population.
  • Among persons under community supervision at yearend 2020, the majority were on probation (3,053,700), while a smaller portion were on parole (862,100).
  • During the past decade, the parole population was the only segment of the correctional population to increase, growing from 11.9% of those under correctional supervision in 2010 to 15.7% in 2020.
  • At yearend 2020, about 2,140 per 100,000 adult U.S. residents were under correctional supervision.
  • The incarceration rate dropped each year during the last decade, from 960 per 100,000 adult U.S. residents at yearend 2010 to 660 per 100,000 at yearend 2020.

March 31, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (4)

New short FAMM memo makes the case for the EQUAL Act

The folks at FAMM today released this short memo titled "The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences."   Though only two pages, the memo cover a lot of ground, and here are some of its concluding points (with cites removed):

The crack-powder disparity fosters and entrenches racial inequality

  • In 2019, 81% of people convicted of crack cocaine crimes were Black, even though white and Hispanic people have historically accounted for over 66% of crack users.
  • Before Congress established the crack-powder disparity in 1986, the average federal drug sentence for Black people was 11% higher than for whites. Just four years later, the average federal drug sentence for Black defendants was 49% higher.
  • The U.S. Sentencing Commission found that, in the case of crack cocaine penalties, “perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system.”

Passing the EQUAL Act would reunite families sooner and protect taxpayers

  • If enacted, the EQUAL Act would reduce sentences for people serving time for crack offenses by an average of just over six years. This change alone would cut a total of 46,500 years off sentences.
  • For those convicted after the EQUAL Act passes, their average sentence will be reduced by 2.5 years. This change will reduce total sentences over the next ten years by 21,300 years.
  • By reducing unnecessary prison time by an estimated 67,800 years for people, 91 percent of whom are Black, the EQUAL Act will reunite thousands of families sooner and save hundreds of millions of taxpayer dollars in the first decade alone.

A few of many prior posts on the EQUAL Act:

March 31, 2022 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (1)

An effective (though incomplete) review of current GOP views on criminal justice reform

Li Zhou has this lengthy new Vox piece about the state of GOP politics on criminal justice issues headlined "The Republican Party is still fractured on criminal justice reform."  The piece is worth a full read, and here are excerpts:

The rhetoric in Jackson’s hearing and in broader GOP messaging have seemed like a departure from the focus on criminal justice reform that the party had as recently as 2018, when the majority of Senate Republicans backed sentencing changes for nonviolent offenders in the First Step Act.  The party back then was eager to show it had made progress on an issue that arose from Congress’s efforts to crack down on crime decades ago.  (Many of these efforts notably excluded violent offenders or sex offenders that Jackson was spuriously accused of going easy on.)

There are some Republicans who are reluctant to evangelize criminal justice reforms now, advocates say, since increases in crime have become a GOP talking point.... “I think your average conservative, or average Republican, may have supported the First Step Act, but I have the impression that the average conservative has backed off from where they were,” says Clark Neily, a senior vice president of legal studies at the Cato Institute.

Experts emphasize, however, that the most aggressive moments in the hearing are not indicative of how open a segment of Republicans still is to important but limited criminal justice reforms. Just last week, 10 Republicans signed on to cosponsor the Equal Act, legislation that would reduce the sentencing disparities between crack cocaine and powder cocaine.  The legislation — which would make penalties the same for the two substances — has yet to be considered on the floor but could pass with the GOP support it has....

For years, the party has been fractured on the subject with senators like Tom Cotton (R-AR) opposed to virtually any reforms, while others like Sens. Rand Paul (R-KY), Mike Lee (R-UT) and Tim Scott (R-SC) have led efforts for sentencing reforms for nonviolent drug offenses and police reforms....

At the state and local level, many Republican officials have also pushed back on progressive prosecutors, policies like changes to cash bail, and reduced prosecutions for low-level offenses. “I think they’re often scared that if … crime continues to increase, no one wants the blame placed on them,” says Jillian Snider, the policy director for the criminal justice and civil liberties team at R Street Institute.

There’s also the Trump factor.  During his presidency, Trump’s support of the First Step Act helped to get Republicans who were on the fence on board. Without his advocacy on the issue now, some lawmakers are likely less open to this idea.

Because there are so many moving part to this story, even a strong press piece cannot cover the ground completely.  For example, the piece does not discuss the conventional wisdom that the slogan "abolish the police" proved extremely unpopular with voters in the 2020 election cycle, nor does it engage much with all sorts of interesting and diverse political reform dynamics at the state level (especially on topics like marijuana reform and record clearing).  Still, this piece reflects a notable moment in the ever-changing ebb and flow over crime policy and crime politics.

March 31, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Wednesday, March 30, 2022

New report claims many successes attributable to Proposition 47's sentencing reductions in California

The Center for Juvenile and Criminal Justice has this notable new report on developments in California titled "Proposition 47: A $600 Million Lifeline to California Communities." Here is the 10-page report's introduction (with cites preserved):

Proposition 47 (Prop 47), one of the most significant criminal justice reforms in California history, has now been in effect for more than seven years.  The initiative, which passed with nearly 60 percent of the vote in 2014, sought to interrupt cycles of frequent incarceration and redress decades of overly punitive sentencing by reclassifying several low-level drug and property offenses from potential felonies to misdemeanors (SOS, 2014; 2014a).  The result has been a marked decline in California’s incarcerated population (Bird et al., 2016; 2018; Graves, 2020).

A key provision of Prop 47 was the reinvestment of state dollars from prisons into community-based prevention programs.  This year, as part of his Fiscal Year (FY) 2022-23 budget proposal, Governor Gavin Newsom announced an additional $150 million in prison savings attributed to Prop 47 (DOF, 2022).  This latest investment would increase total funding to nearly $600 million.

Proposition 47 has been a lifeline to vulnerable Californians. This support has proved critical as California now faces an unprecedented set of challenges.  These include significant disruption and loss of life due to COVID-19, a reckoning over police violence against people of color, sharp increases in the cost of living, and rising rates of homelessness and drug overdose.  Most recently, there are changing public narratives around crime and the impacts of justice reform.  To date, Prop 47 has:

1. Coincided with a period of record-low crime in California (CJCJ, 2020; 2020a; 2021; 2021a).

2. Reduced unconstitutional overcrowding in state prisons (Graves, 2020).

3. Offered resentencing, release, and/or record change opportunities to thousands of Californians.

4. Lessened racial disparities in California’s criminal justice system (Lofstrom et al., 2020).

5. Reinvested more than half a billion dollars into local programs that address the root causes of incarceration for as many as 40,000 people by reducing homelessness and boosting employment.

March 30, 2022 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

"Free-World Law Behind Bars"

The title of this post is the title of this new article authored by Aaron Littman just published in the Yal Law Journal.  Here is its abstract:

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, “free-world” regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

March 30, 2022 in Prisons and prisoners | Permalink | Comments (2)

Tuesday, March 29, 2022

Another review of varying concerns about sentencing equity for January 6 rioters and others

This new Washington Post article reviews anew the enduring question of whether and how January 6 rioters are getting equitable treatment at sentencing.  The article is fully headlined "Judge: Nonviolent Jan. 6 defendants shouldn’t get ‘serious jail time’: A Trump appointee disputes that Capitol breach cases are unique, stirring a debate over how to hold individuals accountable in mass crime." I recommend the full piece, and here are excerpts:

A federal judge criticized U.S. prosecutors for seeking jail time for some nonviolent Donald Trump supporters in the Jan. 6 Capitol breach but not for left-wing activists who protested the 2018 Senate confirmation of Trump Supreme Court nominee Brett M. Kavanaugh. “I know that the government believes that the January 6 cases are sui generis” — or one of a kind — “and therefore can’t be compared to other cases. But I don’t agree,” said U.S. District Judge Trevor N. McFadden, a 2017 Trump appointee. He called the riots the latest in Washington’s history of high-profile and politically divisive mass demonstrations....

McFadden spoke out Wednesday in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Tex., who pleaded guilty to misdemeanor trespassing.  Prosecutors with the U.S. attorney’s office for Washington asked the judge to sentence Cudd to 75 days in jail and one year probation. Instead, he imposed two months’ probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the liberal advocacy group Code Pink....

McFadden’s outspoken criticism of the Justice Department put him out of step with 18 other federal judges who have sentenced Jan. 6 defendants in the U.S. District Court in Washington. Fifteen of those judges have imposed jail time in misdemeanor cases, and many of them, like McFadden, previously served as federal prosecutors in the District....

While one or two other judges like McFadden have balked at sentencing Jan. 6 misdemeanor offenders to jail, most have pushed the other way, criticizing prosecutors for charging many participants similar to nonviolent protesters who routinely disrupt congressional hearings or simple trespassers....

In responding to similar arguments by Cudd attorney Marina Medvin in court, Assistant U.S. Attorney Laura E. Hill rejected the comparison. “January 6 was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6 that was not present on the days of the Kavanaugh protests.  The Kavanaugh protesters were escorted out of the Capitol and the hearing continued. Congressmen and congresswomen were not required to evacuate the building. … They didn’t have to pause proceedings and continue into the early morning hours of the next day, after the building was secure.”

Judges appointed by presidents of both parties have condemned the siege of the Capitol as a unique destabilizing event and weighed jail terms as a way to deter defendants and others from a repeat.  “When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble,” U.S. District Judge Randolph D. Moss, an Obama appointee, said last summer.  “The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.”

“Many politicians are writing a false narrative about what happened. I think they are misleading people,” U.S. District Judge Thomas F. Hogan, a Reagan appointee, said in another case this month.  Warning that attempting to whitewash or play down events could lead to future violence, Hogan called Jan. 6 an “unforgivable” day that will “affect this country for many years.”

Prosecutors say they are trying to treat people fairly based on their individual conduct.  But they also want to hold all accountable for participating in a mass crime in which the crowd made mob violence possible, emboldening and facilitating those who engaged in violence, overwhelmed police and escaped arrest by finding safety in numbers.

Some of many prior related posts:

March 29, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (7)

Split North Carolina court finds some felon disenfranchisement violates state constitution

As reported in this local article, "North Carolina’s law banning many people with felony records from voting after they get out of prison is unconstitutional, a state court ruled Monday."  Here is more (with a link to the lengthy ruling):

Until now, state law allowed people with felony convictions to vote only once they finish their sentence.  That didn’t only include their prison sentence; it also included probation or parole, which sometimes can last for years after someone is released from prison.

Monday’s ruling, first reported by Carolina Public Press, changes that.  Now — pending a potential appeal of the ruling — people with criminal records can vote once they have rejoined society and are no longer behind bars.  The judges wrote that “if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina."

It wasn’t immediately clear if Republican lawmakers, who have defended the law so far, will appeal again.

The law is unconstitutional for generally violating people’s rights, the judges wrote Monday, but also for being explicitly targeted at Black people. Specifically, they wrote that the law “was enacted with the intent of discriminating against African American people and has a demonstrably disproportionate and discriminatory impact.”...

The News & Observer had previously reported that around 55,000 people might be affected by such a change, after an earlier ruling and subsequent appeal in this same case.  The new standard, that people can vote once they leave prison, is the most common practice nationwide, according to the National Conference of State Legislatures.  Two states, Maine and Vermont, let people vote even while in prison.  But most have at least some restrictions, with varying degrees of severity.

The ruling was 2-1 by the panel of three superior court judges assigned to the case. Judge John Dunlow, a Republican from Granville County, dissented.  The two in the majority were Judge Keith Gregory, a Wake County Democrat, and Judge Lisa Bell of Mecklenburg County, who is unaffiliated.

A small part of the law was already struck down just before the 2020 elections, The News & Observer reported, on the basis that in some cases the requirement still functioned similar to a Jim Crow-era poll tax — since some people remained on probation or parole simply for being unable to pay court fines or other costs.

March 29, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

US House overwhelmingly votes, by a margin of 405-12, for "Prohibiting Punishment of Acquitted Conduct Act of 2021"

I continue to believe that federal sentencing reforms can continue to be an arena for bipartisan achievements in Congress (as we saw with the Fair Sentencing Act during the Obama Administration and with the FIRST STEP Act during the Trump Administration).  Of course, the recent SCOTUS confirmation hearings provided a reminder that some legislators on some criminal justice issues are going to favor partisan attacks over responsible discourse.  Nevertheless, my hope springs eternal and news from Congress last night bolsters this hope. 

Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

I am so very pleased to see this very modest bill, but still very meaningful proposal, move forward and receive such overwhelming support from Representatives in both parties.  I hope this legislation can get a vote in the Senate ASAP.  

A few of many, many, many prior related posts:

March 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Monday, March 28, 2022

"Decarceration’s Inside Partners"

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

This Article examines a hidden phenomenon in criminal punishment.  People in prison, during their incarceration, have made important, sometimes extraordinary, strides toward reducing prison populations.  In fact, stakeholders in many corners, from policymakers to researchers to abolitionists, have harnessed the legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls that were once considered impossible.  Despite this outside use of inside moves, legal scholars and reform-minded actors have disregarded the potential of looking to people on the inside as partners in the long-term project of decarceration.

Building on the change-making agency and revolutionary ideation inside the walls, this Article points the way to a new, alternative approach to decarceration: thinking alongside people banished from the polity.  Criminal law scholars routinely recount their stories but rarely do we consider people held in prison as thought leaders, let alone equal partners, to progress toward a noncarceral state.  Despite conducting extensive research on prisons and those held inside them, legal scholars know — and wonder — tremendously little about the decarceral work, decarceral ideas and “think tanks” that surge behind bars.  The absence of our curiosity reflects and reproduces the ideological work of carceral punishment.

This Article demonstrates that an alternative vision of decarceration that resists this ideological work opens up more promising paths to create the legal and social change that our current moment demands.  It calls on law scholars to find ways to discover, ignite and emancipate more decarceral visions on the inside.  And it argues that, unless we make this challenging shift, we suppress innovative, effective and more conceivable possibilities to radically transform our carceral state.

March 28, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert in Arizona capital case to address state limits on collateral review

The US Supreme Court granted cert in three cases this morning, and one involved a cert petition from a defendant on Arizona's death row.  However, the issue on which SCOTUS granted cert in Cruz v. Arizona is likely only to excite collateral review and habeas fans:

Issue: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

But while this statement of the issue may not seem all that exciting, these paragraphs from this amicus brief in support of cert from Habeas Scholars suggests a lot is at stake here:

Amici urge this Court to grant certiorari — or summarily reverse — to stop Arizona’s use of collateral procedure to discriminate against established constitutional rights.  “[S]tate courts have the solemn responsibility, equally with the federal courts ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States.…’” Steffel v. Thompson, 415 U.S. 452, 460-61 (1974) (quoting Robb v. Connolly, 111 U.S. 624, 637 (1884)). They cannot selectively disregard particular constitutional rights....

This Court’s intervention is both necessary and appropriate.  The Arizona decision results in the clear violation of a federal right, and the Arizona Supreme Court’s violation of the Supremacy Clause itself merits this Court’s intervention. Moreover, there is jurisdiction to review the judgment because the state ground is neither adequate to bar review nor independent of federal law. And because Arizona appears to be a singular outlier in its treatment on collateral review of the federal rights at issue here, correction of this error would not affect the practices of other states. Instead of being disruptive, reversal here would restore the appropriate federal-state balance, in accord with this Court’s Supremacy Clause precedents.

March 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Varying perspectives on Illinois's new prosecutor-initiated resentencing law

A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto).  Here are headlines and links:

From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"

From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"

From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"

Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:

Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.

Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.

Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.

On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.

But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”

“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.

March 28, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

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)