Wednesday, March 03, 2021

"Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions"

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

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

March 3, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, February 27, 2021

"Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk"

The title of this post is the title of this paper recently posted to SSRN and authored by Amy Cyphert.  Here is its abstract:

The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018.  The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism.  The resulting tool — PATTERN — was released in the summer of 2019 and quickly updated in January of 2020.  It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic.  It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm.

This Article evaluates PATTERN, both in its development as well as its still-evolving implementation. In some ways, the PATTERN algorithm represents tentative steps in the right direction on issues like transparency, public input, and use of dynamic factors.  But PATTERN, like many algorithmic decision-making tools, will have a disproportionate impact on Black inmates; it provides fewer opportunities for inmates to reduce their risk score than it claims and is still shrouded in some secrecy due to the government’s decision to dismiss repeated calls to release more information about it.  Perhaps most perplexing, it is unclear whether the tool actually advances accuracy with its predictions.  This Article concludes that PATTERN is a decent first step, but it still has a long way to go before it is truly reformative.

February 27, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1)

Friday, February 26, 2021

Split Washington Supreme Court rules state’s strict liability felony drug possession law violates due process

The Washington Supreme Court issued an interesting split decision yesterday concerning the state's drug possession law.  Here is how the majority opinion in Washington v. Blake, No. 96873-0 (Wash. Feb. 25, 2021) (available here), gets started and a few key passages:

Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.  This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power?  The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power....

The question before us today is whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize.  Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct.  States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated.  The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.

But the possession statute at issue here does far more than regulate drugs.  It is unique in the nation in criminalizing entirely innocent, unknowing possession.

February 26, 2021 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, February 24, 2021

"Viral Injustice"

The title of this post is the title of this notable new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

February 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Potent call for new Attorney General to address how "mass detention creates mass incarceration"

Alison Siegler and Kate M. Harris have this notable new New York Times op-ed under the headline "How Did the ‘Worst of the Worst’ Become 3 Out of 4?: Merrick Garland can bring bail reform to the federal justice system."  Here is how the efective piece gets started and concludes:

Few see Judge Merrick Garland, President Biden’s pick for attorney general, as a progressive who will reform the criminal legal system. But the Biden administration recently acknowledged that mass incarceration does not make us safer.  And as the nation’s chief federal prosecutor, if confirmed, Judge Garland will have the power to prioritize federal bail reform and reduce sky-high rates of pretrial jailing.  Doing so will decrease mass incarceration, advance racial justice and enable Mr. Garland to stake his claim as a progressive prosecutor.  In fact, federal bail reform is an area where he may have already shown an appetite for change.

In November, voters across the nation overwhelmingly chose reform-oriented progressive prosecutors over “law and order” challengers.  Red and blue districts elected prosecutors who ran on a promise to use their office to enact change. Some of these prosecutors promised to stop pursuing low-level drug crimes.  And at least one has since ended the use of cash bail for certain crimes.  But while the progressive-prosecutor movement has gained momentum at the state and county levels, it hasn’t gotten any traction in the federal system.

Mr. Garland will be able to change this by disrupting the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.  During his time as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Garland was a member of the Judicial Conference of the United States, the main policymaking organization for the federal bench.  Since 2017, the Judicial Conference has repeatedly called on Congress to reform the federal bail law by eliminating what is known as the “presumption of detention” for many drug cases.

While the Supreme Court famously said that freedom should be the default for people awaiting trial, current law directs judges to assume that people charged with certain crimes — including most drug crimes — will flee and endanger the community if released.  That exception has now swallowed the rule, becoming a built-in bias for incarceration that feeds the federal system’s colossal detention rates and stark racial disparities....

As Judge James Carr of the U.S. District Court for the Northern District of Ohio has observed, “Mass detention creates mass incarceration.”  Instead of maintaining a default position that most people awaiting trial should be jailed, Mr. Garland should enact policy changes that limit pretrial jailing to cases where it is genuinely necessary, eliminate all financial considerations from the detention calculus and aim to reduce racial disparities in pretrial detention.

These common-sense changes would mark the true beginning of a progressive-prosecutor movement at the federal level. Prosecutors fostered the culture of detention. Now they must help dismantle it.

February 24, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, February 23, 2021

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

February 23, 2021 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Monday, February 22, 2021

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

February 22, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Saturday, February 20, 2021

"Does Forfeiture Work? Evidence from the States"

The title of this post is the title of this notable new report from the Institute for Justice and authored by Brian Kelly.  Here is the report's executive summary:

This study provides the first multistate analysis of whether forfeiture works to fight crime or is, instead, used primarily to generate revenue.  These competing claims lie at the heart of the policy debate over forfeiture, a legal tool that allows law enforcement agencies to seize and permanently keep people’s cars, cash and even homes if they suspect the property is connected to criminal activity.  Typically, any proceeds from the property go to law enforcement coffers. Critics charge that this creates an improper incentive for police and prosecutors to pursue forfeiture revenue instead of justice, especially under civil forfeiture laws that do not require a conviction or even criminal charges to forfeit property.  Law enforcement and other proponents counter that forfeiture is an essential crime-fighting tool and that forfeiture proceeds can help law enforcement fight more crime.

To test these claims, this study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively — Arizona, Hawaii, Iowa, Michigan and Minnesota — as well as detailed state and local crime, drug use and economic data.  The study examines forfeitures under state law alone as well as those conducted in concert with the federal government.

Results show:

  • More forfeiture proceeds do not help police solve more crimes — and they may, perversely, make police less effective at solving violent crimes.
  • More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade — and the reduction of drug use — as a primary purpose of forfeiture.
  • When local budgets are squeezed, police respond by increasing their reliance on forfeiture.  A one percentage point increase in unemployment — a common measure of economic health — was associated with an 11% to 12% increase in forfeiture activity.

In other words, this study finds no material support for the claims that forfeiture fights crime, either by enabling police to solve more crimes or by reducing drug use.  It does, however, find economic conditions have a large and statistically significant effect on forfeiture activity, suggesting that at least some forfeiture activity is motivated by a desire for revenue.

These results, like those from earlier studies, are particularly salient now, when local government budgets are suffering due to the COVID-19 pandemic.  The data suggest that during economic times like these police may pursue more forfeiture.

This report adds to mounting evidence that forfeiture fails to serve the public good, all while violating basic rights to property and due process, thus demonstrating the pressing need for forfeiture reform.

February 20, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, February 19, 2021

"Should Public Defenders Be Tweeting?"

The question in the title of this post is the headline of this notable new Vice article.  I recommend the lengthy piece in full, and I suspect more than a few readers might have more than a few thoughts on this important modern-day topic.  Here are just a few excerpts from a piece with lots of thought-provoking elements:

Public defenders had blogged about their work as long as a decade ago, and tweeting about arraignments wasn’t new, but [Scott] Hechinger and others in New York’s PD scene are responsible for popularizing the trend.  As it’s grown, however, criminal justice reform advocates and formerly incarcerated people have started to argue that these posts can put clients at risk of retaliation from judges and prosecutors, violate their privacy, and present ethical quandaries for public defenders talking so openly about their work on Twitter.  The optics of white public defenders gaining likes or retweets on stories of Black and brown suffering has also been called into question.  As advocacy efforts morph from live-tweets to slick video productions, and gain traction with a public increasingly likely to support justice reform, the question has become: who should be telling the story?...

They are a powerful voice in the justice system, but one fear for public defenders and defendants alike is that the judge, prosecutor, or parole officer will retaliate against tweets that are critical of their actions, said Qiana Johnson, executive director of Life After Release, a program that assists people with re-entry. Even those who have already served a sentence are often constrained from speaking out by probation or parole conditions. “Their advocacy could cost them,” she said....

There have been complaints filed against defense attorneys over their use of social media in recent years, though those are not public, said Ellen C. Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University, who studies ethics in law.  Prior to 2014, a Virginia attorney was disciplined for blogging about the cases he had won as a defense attorney, an act that constituted self-advertising, the state bar found, according to the 2013 law letter written by Nicole Hyland as part of an ethics committee.  An Illinois public defender was fired from her job and suspended by the bar for 60 days after posting client details in 2007 and 2008 on Facebook, including a picture of her client’s leopard-skin underwear — evidence in a trial.  Others have been disciplined for disparaging clients or judges.  In March 2018, the American Bar Association issued a formal opinion limiting the ability of attorneys to blog or comment publicly about their cases.

Many on PD Twitter have also been called out for “trading on the suffering of Black and brown people,” said [Nicole] Smith Futrell, cautioning that “just because you’re a public defender representing someone who’s experienced [the system,] it doesn’t mean that you’ve experienced that thing that you now get to tell.”  As defense attorneys push advocacy in new directions and accept media opportunities, they are encountering many of the ethical questions journalists have long wrestled with: does the individual or the larger narrative take precedence?  When does “storytelling” become exploitative?...

Brendon Woods, the chief defender in Oakland’s Alameda County Public Defender’s Office, has been in the field since the late 90s when there were a few shared desktop computers available for public defenders to use. He sees plenty of law enforcement outfits on Twitter and said the voices of public defenders have been game-changing. They have power, he said, but that power must be used with care.  “Our clients, they’ve been dehumanized by the system so much, you don’t need to have it happen from people who are tweeting or posting stories on Facebook,” he said, “and without any thought or strategy being put into them or why they're doing it.”

February 19, 2021 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

Wednesday, February 17, 2021

"'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery"

The title of this post is the title of this new paper available via SSRN and authored by Alison Lynch, Michael L. Perlin and Heather Cucolo.  Here is its abstract:

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment.  Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child.  Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

In this paper, we discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can better prepare an effective defense or mitigation.  We consider, in some depth, several of the substantive areas of criminal law and procedure in which an understanding of TBI is especially significant (including, but not limited to, competency status, the insanity defense and the death penalty), and assess the quality of counsel –and experts -- in such cases, again, in some instances, using the Montgomery case as a prism.

We believe that one (at least partial) remedy for the current situation is a turn to therapeutic jurisprudence (TJ) The TJ doctrine emphasizes giving an individual client dignity, voice, validation and voluntariness of action and decision.  This is particularly important for an individual with TBI, who will likely have the capacity to make the majority of decisions about his case, but who may still need behavioral treatment or interventions for symptoms of the TBI.  We will discuss the ways that TJ plays into these issues, and how TJ must be the grounding of any representation of this population.  We conclude with some modest suggestions as to how we can begin to make needed changes in the criminal justice system to take all of these issues into account.

February 17, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, February 16, 2021

"Revocation and Retribution"

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

Revocation of community supervision is a defining feature of American criminal law.  Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year.  While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release.  Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.”  Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation.  Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

February 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, February 14, 2021

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, February 13, 2021

"Bargained Justice: The Rise of False Testimony for False Pleas"

The title of this post is the title of this new article available via SSRN and authored by Andrew Pardieck, Vanessa Edkins and Lucian Dervan. Here is its abstract:

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent.  The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain.  Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves.

This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems.  It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain.  The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining's innocence problem.

February 13, 2021 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (2)

Friday, February 12, 2021

"Direct Collateral Review"

The title of this post is the title of this notable new Columbia Law Review piece authored by Z. Payvand Ahdout (hat tip: How Appealing). Here is is abstract:

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings.  But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal.  Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts.  And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final.  This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption.  This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

February 12, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Litigation over clergy halts Alabama execution (and divides Justices in notable ways)

Though the federal government carried out the first three execution of 2021 last month, the first state execution in the US was scheduled to take place last night in Alabama.  But, as this local article explains, today "Willie B. Smith III remains alive on death row in Alabama, after the U.S. Supreme Court upheld a ruling that required Smith’s spiritual advisor to be in the execution chamber with Smith when he was given the lethal injection."  Here is more:

The ruling came down around 11:08 p.m. Thursday night, with the Alabama Department of Corrections calling off the execution one minute later.

In the concurring ruling, Justice Elena Kagan said that the law “guarantees Smith the right to practice his faith free from unnecessary interference”. “The Eleventh Circuit was right to bar Alabama from executing Smith without his pastor by his side,” Kagan said. “Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.”

Kagan along with Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Amy Coney Barrett all denied the Alabama Attorney General’s Office’s motion to overturn a lower court ruling requiring Smith’s spiritual advisor to be in the execution chamber. Justice Brett Kavanaugh along with Justice John Roberts, wrote the dissenting opinion.

Smith’s other claim as to why the execution should be called off centered on what his lawyers called an intellectual disability.  While the 11th Circuit Court of Appeals granted a stay based on that claim Wednesday night, the U.S. Supreme Court lifted that stay around 11 p.m. Thursday.

Smith, 51, was originally set to die by lethal injection at 6 p.m. inside of William C. Holman Correctional Facility in Atmore....  Smith was sentenced to death in 1992 for the Oct. 1991 abduction, robbery and murder of Sharma Ruth Johnson. Johnson’s body was found in the trunk of her burned car with a shotgun wound to her head, after being shot execution style at a east Birmingham cemetery. 

The full SCOTUS discussion of these issues is available at this link, but the opinions released by the justices are just concurrences and dissents from the denial of Alabama's application to lift the stay put in place by the Eleventh Circuit.  As Amy Howe explains in this SCOTUSblog post, the exact votes here are unclear even though it is clear that this issue has divided the more conservative block of Justices:

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber.  Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy.  The remaining two justices — Justices Samuel Alito and Neil Gorsuch — did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

This NPR piece about the ruling provides some context for how SCOTUS has struggled with execution clergy issues in recent years:

The Supreme Court justices have grappled with the same legal question at the core of the Smith case in the last two years, but have ruled very differently in each situation.  In 2019, the Supreme Court, by a 5-4 vote, ruled that Alabama could execute Domineque Hakim Ray, a Muslim man convicted of murder.

The appellate court had temporarily blocked the execution because the state barred the man from having a Muslim imam at his side in the death chamber. Alabama said only the prison's Christian minister would be allowed in.

A month later, in a 7-2 vote, the justices granted an eleventh-hour stay of execution to Patrick Henry Murphy, a Buddhist prisoner in Texas who had been denied a Buddhist religious adviser at his side in the death chamber.  The difference between the two cases, according to the conservative court majority, was that the Muslim prisoner waited too long to ask for an imam.

It's unclear what the state of Alabama's next move will be in the Smith case.

That both Justices Alito and Gorsuch remained silent and yet may have voted for the stay here is fascinating; these two have long seemed, by virtue of their votes and opinions, to be the two Justices most eager to ensure condemned inmates fail in any and all efforts to block or delay scheduled executions.  In addition, I believe this case may represent the very first time in which, in a closely divided vote, Justice Barrett joined an opinion of her more liberal colleagues.  Justice Barrett could have, of course, opted for the "silence is golden" approach adopted by Justices Alito and Gorsuch; that she notably decided instead to sign on to Justice Kagan's concurrence is quite noteworthy.

February 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 11, 2021

Thoughtful accounting of the dynamic world of prosecutorial discretion

Marc Levin has this notable new Law360 commentary headlined "DOJ Charging Memo Rescission Aids Prosecutorial Discretion."  The piece covers a lot more than just the new interim DOJ charging memo (discussed here), and I recommend the entire discussion in full.  Here are excerpts:

[W]hile prosecutors have always declined cases, recently elected prosecutors in urban and even some suburban jurisdictions face backlash for presumptively declining to pursue certain categories of cases, such as low-level drug possession and trespassing on public property.

Of course, exercising discretion on which charges to bring in a particular case is not the same as designating categories of cases in which the default policy will be nonprosecution.  Critics charge that the latter displaces the role of legislative bodies in criminalizing conduct.

However, even policies that presumptively decline prosecution for certain offenses can be consistent with the rule of law, provided they operate within constraints that ensure accountability, individualized review and transparency....

In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of.  Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.

Default nonprosecution policies, even if implicit rather than announced, are routinely applied to such antiquated statutes, but also are required by the dramatic growth of criminal law in recent decades.  As a result, countless obscure crimes are largely unknown and unprosecuted.  Many are regulatory offenses affecting business and recreational activities, such as federal laws criminalizing ketchup that isn't thick enough, bringing too many nickels when traveling overseas or writing a check for less than $1.  Like trespassing on public property or drug possession, these obscure offenses often lack an identifiable victim.

A last-minute executive order by former President Donald Trump rightfully urges that civil, rather than criminal, penalties be pursued for unknowing violations of regulations....

This executive order also encourages prosecutors not to bring charges for such crimes if the prospective defendant did not have a culpable mental state, even though it is not required by the law or regulation.  While laudable, this is not fundamentally different than presumptively declining to prosecute an offense altogether, since it effectively restricts the scope of an offense that, as written, creates strict criminal liability.

If prosecutors indeed have the rightful authority to decline pursuing these categories of obscure offenses, then local district attorneys can presumptively not prosecute drug possession or public trespassing.  The ubiquity of the latter is simply not a meaningful philosophical distinction.

Some would argue another difference is that those who tend to be subject to drug and trespassing laws are much less powerful.  Others would point to the neighborhood quality-oflife concerns as a distinguishing factor, but that goes to the question of whether prosecution or other strategies are most effective, not the legitimacy of prosecutorial declinations.

Prosecutors must decide not just whether laws have been violated, but whether prosecution is in the public interest, taking into account the trade-off in pursuing other cases and whether prosecution would be more likely than other approaches to advance goals such as public safety and public confidence in the justice system.

In military terms, lawmakers give prosecutors ammunition, but prosecutors decide not only when to shoot but which battles should be fought.

A few recent related posts:

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

Wednesday, February 10, 2021

"The Sixth Amendment Sentencing Right and Its Remedy"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and now available via SSRN.  Here is its abstract:

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences.  The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right.  The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis.  Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice.  What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment — the liberty interests of criminal defendants and democratic input into individual criminal cases.  Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

February 10, 2021 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

State court limits new LA County DA's new directives limiting use of sentencing enhancements

I have noted in prior posts linked below the various reform efforts of new Los Angeles County District Attorney George Gascón and the push back these efforts have reeived from other prosecutors.  This week, these issues resuted in a notable state court ruling, and detailed in this Los Angeles Times article headlined "Several of D.A. George Gascón’s reforms blocked by L.A. County judge."  Here are excerpts:

Los Angeles County Dist. Atty. George Gascón was barred from implementing a significant part of his sprawling criminal justice reform platform Monday, after a judge ruled his plan to end the use of sentencing enhancements in thousands of criminal cases violates California law.

The order stemmed from a lawsuit filed late last year by the union that represents hundreds of L.A. County prosecutors, alleging some of Gascón’s plans exceeded his legal authority and put line prosecutors in an ethical bind.  Sentencing enhancements can add several years to a defendant’s time in prison if certain criteria are met, such as using a gun causing severe injury during the commission of a crime, or being a documented gang member.

The lawsuit took particular issue with Gascón’s policy of barring the use of sentencing enhancements for prior felony convictions, arguing that under California’s “three strikes” law, prosecutors do not have discretion “to refuse to seek the enhancement.”

In his ruling, Judge James Chalfant noted that the “three strikes” law requires prosecutors to “plead and prove” all prior serious or violent felony offenses.  He found Gascón’s directive ordering prosecutors not to file such enhancements unlawful, and cited several appellate cases that upheld the argument that strike offenses must be charged under state law.

“A district attorney’s discretion is not unlimited. He or she must work within the framework of the criminal system,” Chalfant wrote.  “The legislature also is entitled to enact laws intruding on the executive or judicial branches of government so long as they do not defeat or materially impair that branch’s core function.”

In a 46-page ruling, Chalfant also barred Gascón from ordering prosecutors to dismiss any sentencing enhancements in active cases, unless they can argue that there is insufficient evidence to prove the enhancement or that the dismissal would be in the interest of justice.

Since Gascón took office, many prosecutors have appeared in court and read a statement — which some derisively refer to as “the script” — acknowledging they were seeking to dismiss enhancements under Gascón’s order because they believed the underlying penalties for the crime in question were “sufficient to protect public safety and serve justice.”

Judges had already been blocking such motions to dismiss on those grounds, but Chalfant’s ruling also stopped Gascón from ordering prosecutors to read the statement, finding the remarks themselves are “inaccurate and incomplete” and would require prosecutors to commit an ethical violation by making an inaccurate representation to the court.

The ruling affects a significant number of cases in L.A. County, where there are 10,794 defendants currently facing charges with sentencing enhancements, according to statistics provided to The Times in response to a public records request.  Gascón can still bar prosecutors from filing most sentencing enhancements in new cases, though enhancements for prior strike offenses must still be charged, according to the order....

Gascón said he will appeal Chalfant’s ruling, which he acknowledged as an expected hurdle in his broader mission to reimagine criminal justice in Southern California. “More than 2 million people in Los Angeles County voted for a system of justice based on science and data, not fear and emotion.  Nevertheless, I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism,” he said in a statement.  “My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety.”

In a reply filed in January to the union’s suit, lawyers for L.A. County argued that prosecutors have broad discretion over whether to file strike enhancements and contended that if a judge granted the union’s petition, it would be an unprecedented overreach from the bench.  “The Union asks for something no California court has ever ordered, as no California court has ever deemed itself to have the power to require ... a district attorney to plead any particular criminal charge or sentencing enhancement,” the reply read. “To the contrary, courts have long held that such charging power is almost entirely unreviewable and is uniquely within the district attorney’s discretion.”

The day he took office, Gascón announced an array of sweeping changes that included putting an end to the use of enhancements, severely restricted when prosecutors can seek to hold defendants in lieu of bail, ended the use of the death penalty in L.A. County and stopped the practice of trying juveniles as adults.  The seismic policy shifts have drawn Gascón praise from other progressive prosecutors and criminal justice reformers nationwide, but left him at odds with his own staff and many of the local law enforcement officials he must work with to try cases.

The union lawsuit was being watched closely by law enforcement officials around the state and highlighted a broader divide between traditionalist and reform-minded prosecutors that has seemingly grown wider in recent weeks.  San Francisco Dist. Atty. Chesa Boudin and Contra Costa County Dist. Atty. Diane Becton filed briefs in support of Gascón, worrying that a ruling like the one issued Monday would have a “chilling effect” on the authority of elected prosecutors to enact reforms.

The full opinion is available at this link, and the coming appeals should be interesting to watch.

Prior recent related posts:

February 10, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 08, 2021

US House subcommittee to hold hearing on means to "Prevent Abuse of the Clemency Power"

The planned start of former Prez Trump's second impeachment trial in the US Senate is sure to be getting all the attention on Capitol Hill tomorrow.  But this webpage notes that there will be an interesting hearing for clemency fans taking place the morning of February 9, 2021 in the the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives' Judiciary Committee. The hearing it titled "Constitutional Means to Prevent Abuse of the Clemency Power," and this webpage lists these scheduled witnesses:

Ms. Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown University Law Center

Ms. Karen Hobert Flynn, President, Common Cause

Mr. Josh Blackman, Professor of Law, South Texas College of Law Houston

Mr. Timothy Naftali, Clinical Associate Professor of Public Service, New York University

February 8, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Restoring the Historical Rule of Lenity as a Canon"

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

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation.  Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant.  But the rule is not always reliably used, and questions remain about its application.  In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule.  The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes.  As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts.  If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

February 8, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, February 07, 2021

"Can Prosecutors Help To End Mass Incarceration?"

The title of this post is the title of this article/book review authored Rachel Barkow now available via SSRN.  Here is its abstract:

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.”  While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration.  In this review, I explain why. 

Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments.  In this review, I document the resistance to prosecutors seeking to decarcerate.  The forces pushing back come from outside and inside the office.  We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors.  They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive.  If they are not putting their full support behind these institutional changes, one should question just how progressive they are.

But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own.  Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices.  Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control.  Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

February 7, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Friday, February 05, 2021

"Narrating Context and Rehabilitating Rehabilitation: Federal Sentencing Work in Yale Law School’s Challenging Mass Incarceration Clinic"

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

The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016.  Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges’ and prosecutors’ assumptions about criminal sentencing.

In this article, I set forth CMIC’s theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice.  I then describe CMIC’s case outcomes, including variances which have reduced each of our clients’ prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors’ recommended sentences.  CMIC’s work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases.

Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability.  I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model.

February 5, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 04, 2021

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Wednesday, February 03, 2021

Disconcerting new data on pandemic parole practices from the Prison Policy Initiative

The Prison Policy Initiative has this new briefing authored by Tiana Herring that provides some notable data on parole realities in 2022. Authored by Tiana Herring, the full title of the piece highlights its themes: "Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic: Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic."  Here is much of the exposition (click through to see data):

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic.  Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes.  In over half of the states we studied —Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina — between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times.  Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations.  And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.  But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release.  Parole boards often choose to deny the majority of those who appear before them.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole.  This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months.  Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states — Hawaii, Iowa, New Jersey, and South Dakota — actually approved more people for parole in 2020 than in 2019.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, January 30, 2021

"Assessing Graham v. Florida at the Ten-Year Mark: Progress and the Prospects for Ongoing Juvenile Sentencing Reform"

The title of this post is the title of this great looking upcoming symposium being conducted by the Catholic University Law Review this coming Friday, February 5, 2021 starting at 1pm EST. Here is how the event is described and the planned coverage (click through to see all the great speakers):

Three Supreme Court decisions in the last decade have dramatically reshaped the treatment of juveniles in our criminal justice system.  In Graham v. Florida (2010), the Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes.  Two years later, in Miller v. Alabama (2012), the Court held that even juveniles convicted of homicide may not be sentenced to mandatory LWOP.  Finally, in Montgomery v. Louisiana (2016), the Court held that Miller was retroactively applicable, thereby entitling several thousand individuals to a resentencing hearing at which their youth and all its mitigating attributes would be taken into account.  These cases not only significantly curbed the uniquely American practice of sentencing minors to LWOP, but also, together they stand for the proposition that children are different for purposes of sentencing.

Ten years after the landmark decision in Graham, this symposium will explore the impact that these cases have had on juvenile sentencing in the LWOP context and more broadly. The first of three panels will include practitioners who can provide a firsthand perspective on resentencing hearings and how they are playing out in courtrooms across the country.  The second panel will consider the legislative effects of Graham and will include policymakers working on the ground to pursue related juvenile sentencing reforms. Finally, the closing panel will afford attendees an opportunity to hear directly from individuals affected by Graham, that is, those who were sentenced to life imprisonment as juveniles and have now come home.

The Program

1:00 p.m.  Graham v. Florida at the Ten-Year Mark

1:30 p.m.  Resentencing Hearings Post-Graham

2:45 p.m.  Legislative Effects of Graham

4:00 p.m.  Life after Graham

January 30, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 29, 2021

Interim Attorney General releases new "Interim Guidance on Prosecutorial Discretion, Charging and Sentencing"

601446752800005c00974ec2Via this HuffPost piece, headlined "DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy," I see that the failure of the Biden Administration to yet have a new confirmed Attorney General is not keeping it from having a new prosecutorial charging and sentencing policy.  Well, actually, the Biden Justice Department now has an old charging and sentencing policy, as explained by HuffPost:

In a memo to all federal prosecutors obtained by HuffPost, acting Attorney General Monty Wilkinson rescinded a May 10, 2017, memo from then-Attorney General Jeff Sessions.  At the time, Sessions told federal prosecutors across the country to always pursue to harshest charges and penalties possible unless they received specific permission from their supervisors.

“The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated,” Wilkinson wrote.

Under Donald Trump-era policies, prosecutors were instructed to always disclose any facts that would trigger mandatory minimum sentences during the sentencing process.  If a prosecutor wished to recommend a departure or variance to a judge during the sentencing process, they were also told to get a supervisor’s approval.

For now, the Justice Department is reverting back to a 2010 charging and sentencing policy issued by former Attorney General Eric Holder.  Under Holder’s guidelines, federal prosecutors were encouraged to focus on “individualized justice” and decision-making based on “the merits of each case.”

This change is not unexpected, but it is still a big deal (and really a much bigger deal than the recent Executive Order on private prisons). Because this is a big deal, I am quite disappointed this change is announced on a Friday afternoon and without seemingly any official statement (yet) from the Justice Department.  Because we are still awaiting confirmation hearings for AG-nominee Merrick Garland, I suppose I can understand why this is getting a "soft launch" and is merely a partial reversal back to prior Obama-era policies.  But, at a time when there is a real interest and concern for criminal justice reform, this memo could be a real "teaching moment" if handled differently.  Sigh.

January 29, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

In high-profile sentencing, victim input and collateral consequences pus judge away from prison term for misconduct by former FBI attorney

This lengthy Politico piece, headlined "Ex-FBI lawyer spared prison for altering Trump-Russia probe email," reports on an interesting high-profile federal sentencing today in DC.  Here are excerpts, with a bit of commentary to follow:

The only person charged in the Justice Department's investigation into the origins of the probe of former President Donald Trump's 2016 campaign and its ties to Russia was spared prison time for altering an email used to support a surveillance application.  Former FBI attorney Kevin Clinesmith, 38, received the sentence of 12 months probation and 400 hours community service from U.S. District Court Judge James Boasberg Friday during a video hearing.

Clinesmith admitted that in June 2017 he sent an altered email to an FBI agent that indicated a target of court-ordered FBI surveillance, former Trump campaign adviser Carter Page, was "not a source" for the Central Intelligence Agency. The statement, passed along as the FBI was applying for a third extension of surveillance of Page, made Page's actions seem more suspicious by downplaying his past cooperation with the CIA.

Clinesmith insisted that he thought the statement was true at the time and only altered the message to save himself the hassle of procuring another email from the CIA. Prosecutors contested that claim, arguing that the FBI lawyer intended to mislead his colleague, but Boasberg sided with the defense on that point.  "My view of the evidence is that Mr. Clinesmith likely believed that what he said about Mr. Page was true," Boasberg said. "By altering the email, he was saving himself some work and taking an inappropriate shortcut."

While Trump and his GOP allies have suggested that Clinesmith was engaged in a political vendetta against Trump, Boasberg noted that a Justice Department inspector general investigation failed to establish that political considerations played a role in Clinesmith's actions or numerous other errors and omissions that impacted filings with the Foreign Intelligence Surveillance Court....

Clinesmith pleaded guilty last August to a felony false statement charge in a plea deal with John Durham, the prosecutor then-Attorney General William Barr tapped in 2019 to investigate the origins of the Trump-Russia probe. Barr formally designated Durham as a special counsel last fall, in an apparent bid to complicate any attempt by a new administration to shut down Durham's inquiry.

Prosecutors argued that Clinesmith's misconduct was so serious that he deserved between about three and six months in prison. Clinesmith's lawyers asked that he not receive any prison time.  The maximum sentence on the false statement charge is five years in prison, although judges usually sentence in accord with federal guidelines that called for Clinesmith to serve between zero and six months in prison. "The defendant's criminal conduct tarnished and undermined the integrity of the [Foreign Intelligence Surveillance Act] program," Assistant U.S. Attorney Anthony Scarpelli told the court.  "It has lasting effects on DOJ, the FBI, the FISC, the FISA process and trust and confidence United States citizens have in their government...The resulting harm is immeasurable."

Clinesmith's lawyer Justin Shur called his client's actions "inexcusable," but said they were "aberrations" in a life of dedicated public service.  He also said they played a relatively small part in the overall surveillance process and the broader probe. "There were many people involved in these applications and many mistakes that were made," Shur said....

Clinesmith also addressed the court, expressing contrition and describing his career as essentially destroyed by his misconduct and the ensuing prosecution. "I am fully aware of the significance of my actions and the crucial error in judgment I made," the lawyer said. "I let the FBI, the Department of Justice, my colleagues, the public and my family down. I also let myself down.  I will live with the consequences and deeply-held feeling of regret, shame and loss caused by it for the rest of my life."

While prosecutors urged the judge to send Clinesmith to prison to send a message to others in government not to try something similar, Boasberg said he believed that message had already been sent. He noted that Clinesmith has lost his job, may be disbarred and may never be able to work in the national-security field again. "He went from being an obscure government lawyer to standing in the eye of a media hurricane," the judge said. "He's not someone who ever sought the limelight or invited controversy other than by his criminal action here....Anybody who's watched what Mr. Clinesmith has suffered is not someone who would readily act in that fashion."

The 90-minute sentencing hearing also featured an impassioned speech from Page, in which the energy industry analyst complained that his life was also turned upside down by the media firestorm that followed public disclosure that he was a focus of the FBI probe into potential Russian influence on the Trump campaign. "My own personal life has been severely impacted," Page said. "I was frequently harassed on the street and even under the street such as in the Washington metro beneath the courthouse....It was deadly serious. At the time I received many death threats as a 'traitor.'"

However, Page did not ask for imprisonment for Clinesmith. "I hope the defendant can get back to his family as soon as you deem appropriate," the former Trump campaign adviser told the judge. That seem to strike a chord with Boasberg, who mentioned twice during the hearing that Page wasn't seeking prison for the ex-FBI lawyer.

The politics surrounding this case account for why this matter will be covered in many newspapers, but I am drawn to this tale as a notable sentencing story.  Tellingly, while federal prosecutors argued that some prison time was needed, the person victimized by the offense (Carter Page) had the magnanimous and impactful view that the defendant need not serve any prison time.  In addition, the federal district judge here recognized, as should every sentencing judge in every case, that the defendant was already subject to a wide array of significant and persistent collateral consequences which function to punish and deter in ways that transcend a short period in prison.

January 29, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (1)

Wednesday, January 27, 2021

"Prosecuting Misdemeanors"

The title of this post is the title of this book chapter authored by Jenny Roberts now available via SSRN.  Here is its abstract:

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year.  This chapter discusses the role of prosecutors in the misdemeanor system.  First, it addresses prosecutorial discretion and mass misdemeanor criminalization.  Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases.  Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes.  This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors.  Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record.

Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion.  Some recently elected so-called progressive prosecutors have already implemented significant promised changes.  Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

January 27, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, January 25, 2021

Some prosectors concerned LA's new progressive prosecutor is progressing too far

Last month I noted in this post that L.A. County District Attorney George Gascón made a lot of bold policy changes in his first day in office.  Now this new Politico article, headlined "California prosecutors revolt against Los Angeles DA’s social justice changes," highlights the push-back these policy changes are engendering.  Here are excerpts:

Los Angeles District Attorney George Gascón ran on a vow to shake up America’s largest law enforcement jurisdiction. Sweeping progressive changes followed — and so has the California backlash.

Within weeks of taking office, Gascón instructed prosecutors to stop seeking the death penalty and trying juveniles as adults.  He ordered a halt to most cash bail requests and banned prosecutors from appearing at parole hearings.  Most controversially, he barred prosecutors from seeking various sentencing enhancements.

Even if expected, Gascón’s moves have set off a political confrontation of unprecedented magnitude.  Rank-and-file Los Angeles prosecutors have revolted and sought to block their new boss in court.  District attorneys elsewhere in California have said they will not share cases with Gascón....

The widening battle offers a high-profile microcosm for larger tensions roiling law enforcement in California and around the country.  The outcome will substantially impact Los Angeles and send a message to prosecutors everywhere.  Once a pioneer in stringent penalties that drove an incarceration boom, Los Angeles is now the hub of a struggle over the course of criminal justice.

“He’s doing exactly what he said he was going to do during the campaign,” transition spokesperson Max Szabo said. “There’s certainly backlash, but we can’t as a system of justice change course based on that backlash and ignore what the broader public has asked for.”...

“This is the first time that a district attorney in Los Angeles County is using data, science and research instead of fear and emotion to drive policy decisions,” Szabo said.  “Enhancements have never been shown to enhance safety, but excessive sentences have been shown to exacerbate recidivism and therefore create more victims of crime in the future.”

January 25, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, January 21, 2021

"Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

Thumbnail_image001The title of this post is the title of this great symposium taking place (on Zoom) on February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event.  This link provides a registration form, and here is schedule for the symposium:

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

  • Moderated by:
    • Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Maybell Romero, Associate Professor of Law at Northern Illinois University College of Law
    • Ronald Wright, Associate Dean for Research and Academic Programs and Needham Yancey Gulley Professor of Criminal Law at Wake Forest University School of Law
    • Carissa Byrne Hessick, Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law
    • Miriam Krinsky, Executive Director of Fair and Just Prosecution

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

  • Moderated by:
    • Amna Akbar, Associate Professor of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law
    • Tamara Lawson, Dean and Professor of Law at St. Thomas University School of Law
    • Roger A. Fairfax, Jr., Patricia Roberts Harris Research Professor of Law and Founding Director of the Criminal Law and Policy Initiative at The George Washington University Law School
    • Olwyn Conway, Assistant Clinical Professor of Law at The Ohio State University Moritz College of Law

3:30 p.m.-5:00 p.m.: Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

  • Moderated by:
    • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
  • Panelists:
    • Marilyn J. Mosby, Baltimore City State’s Attorney
    • Kay L. Levine, Professor of Law at Emory University School of Law
    • Alex Kreit, Director of the Center for Addiction Law & Policy and Assistant Professor of Law at Northern Kentucky University Chase College of Law

January 21, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, January 20, 2021

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

January 20, 2021 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, January 12, 2021

"Criminal Municipal Courts"

The title of this post is the title of this new article authored by Alexandra Natapoff just published in the latest issue of the Harvard Law Review. Here is its abstract:

Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system.  Largely ignored by judicial theorists, municipal governance scholarship, and criminal theory alike, these city-controlled courts operate on the intellectual sidelines; even basic public information about their dockets and operations is scarce.  This Article brings municipal courts into the broader legal and scholarly conversation, offering the first comprehensive analysis of the enormous municipal court phenomenon.  Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts — sometimes referred to as “summary” or “justice” or “police” courts — are central to cities’ ability to police, to maintain public safety, and to raise revenue.  At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants.  Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. These hybrid institutions thus pose thorny conceptual challenges: they are standalone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions.  As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity.

This Article provides a framework for appreciating the institutional complexity of this lowest tier of American criminal justice.  Municipal courts deviate substantially from the classic model of courts as neutral, independent guardians of law. They are also vehicles for cities to express their political autonomy and redistribute wealth, and thus constitute underappreciated engines of local governance.  As criminal adjudicators, they quietly contribute to localized mass incarceration while threatening the integrity of some foundational features of the criminal process.  At the same time, they represent a potentially attractive opportunity to render criminal institutions more locally responsive.  Finally, they reveal a deep dynamic at the bottom of the penal pyramid: low-status cases and institutions exert a formative influence over law itself.  These complexities make reform especially challenging.  There are doctrinal reforms that could strengthen municipal court operations, but they are inherently limited.  The deeper reform would be to stop dismissing these courts as minor, inferior institutions and to take them and their millions of defendants seriously across the board of law, policy, and politics.  Widely influential, jurisprudentially challenging, and democratically complicated, municipal courts deserve a more central place in the modern legal conversation.

January 12, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, January 10, 2021

Montana Supreme Court talks through juve LWOP resentencing after Miller

This past Friday, the Montana Supreme Court handed down a notable ruling (with lots of opinions) on the application of the US Supreme Court's juvenile LWOP sentencing jurisprudence and related issues.  The main opinion and various concurring and dissenting opinions in Montana v. Keefe, No. 2021 MT 8 (Mont. Jan. 8, 2021) (available here), all make for interesting reads.  Here are some of the essentials from the majority opinion: 

We agree with the Briones court that post-offense evidence of rehabilitation is clearly required to be considered by a court resentencing a juvenile who is serving a sentence of life without parole.  Because Miller commands a resentencing court to consider “the possibility of rehabilitation” before a juvenile can lawfully be sentenced to life without parole, evidence of rehabilitation in the years since the original crime must be considered by the resentencing court.  This is consistent with the sentencing policy of Montana which does not merely provide for punishment, protection of the public, and restitution, but also for rehabilitation and reintegration of offenders back into the community....

Although we have determined the District Court erred in determining Keefe was “irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that basis, we must address whether the issue of the irreparable corruption of a minor is a fact which must be found by a jury.  Keefe has argued, pursuant to Apprendi, that he is constitutionally entitled to have a jury determine whether he is, in fact, “irreparably corrupt” before a possible life without parole sentence.  We disagree....

Here, neither “irreparable corruption” nor “permanent incorrigibility” are facts which could increase a possible sentence.  Rather, youth is a mitigating factor which can reduce the possible sentence for deliberate homicide in Montana.  In accordance with Miller and Steilman, a jury is not required to determine irreparable corruption and permanent incorrigibility — that determination is properly left to the resentencing judge.

January 10, 2021 in Assessing Miller and its aftermath, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, January 07, 2021

Sixth Circuit panel reiterates "district courts have discretion to define 'extraordinary and compelling' on their own initiative" for 3582(c)(1)(A) motions

A helpful reader made sure I did not miss another recent notable Sixth Circuit ruling discussing the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  A couple of months ago, as noted in this post, a Sixth Circuit's panel handed down US v. Jones, No. 20-3701 (6th Cir. Nov. 20, 2020) (available here), to become then only the second circuit to rule expressly that district courts now have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction now that federal courts can directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Yesterday, a distinct Sixth Circuit panel reiterated this important doctrinal reality in  US v. Elias, No. 20-3654 (6th Cir. Jan. 6, 2021) (available here).

Notably, the Elias decision ultimately affirmed a district court's decision not to grant a defendant any reduction in sentence.  But the ruling usefully restated the broad authority of district courts in this arena.  Here is some of that discussion:

This Court recently spoke on that question [of whether the existing sentencing guideline confines district court authority], stating that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates.  Jones, 980 F.3d at 1108–11.  The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion.  See id. (discussing the purpose of the First Step Act and noting that “[t]he first sentence of § 1B1.13 predicates the entire policy statement on the Director of the BOP’s filing a motion for compassionate release”).  The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts.  See Brooker, 976 F.3d at 234.  Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.  See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 281–82.

Thus, there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions.  Further, we clarify that, as in Jones and Ruffin, district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others....  And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define “extraordinary and compelling” on their own initiative.  See Jones, 980 F.3d at 1111; Ruffin, 978 F.3d at 1007 (suggesting that without an “‘applicable’ policy statement for motions by defendants . . . district court[s] may freely identify extraordinary and compelling reasons”).

A few of many, many prior related posts:

January 7, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, January 02, 2021

DC Circuit panel upholds January 12 execution date for only woman on federal death row

Just before Christmas, as noted in this post, a federal district judge vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for January 12.  But, on New Year's Day, a DC Circuit panel issued this order putting the execution back on track.  This CNN article about the ruling provides some context:

Montgomery's execution had been scheduled for December 8, but a judge postponed it after her attorneys said they were diagnosed with Covid-19 after flying from Texas to visit with Montgomery at the Federal Correctional Complex in Terre Haute, Indiana.

On November 23, the director of the Federal Bureau of Prisons, Michael Carvajal, rescheduled Montgomery's execution for January 12.  Friday's order said he was acting under the "governing regulation," which allowed him to reschedule the execution because the original execution date had not passed.  The order said he was acting under the law, clearing the way for Montgomery's execution later this month.

Montgomery's attorney, Meaghan VerGow, said in a statement that she disagrees with the judges and is going to file a petition for them to reconsider their decision.  The judges gave VerGow until Saturday to file. "The federal government must be required to follow the law in setting any execution date, as the district court correctly held ... Given everything we know about Lisa Montgomery's mental illness, her lifetime of horrific torture and trauma, and the many people in positions of authority who could have intervened to save her but never did, there can be no principled reason to carry out her execution," VerGow said.  "The government should stop its relentless efforts to end her life."...

The Trump administration has overseen 10 federal executions in the final months of his presidency, the most in a single year in the United States in decades, and a revival after years of having none.  Montgomery would be the first woman executed by the US government since 1953.

In 2004, Montgomery was convicted of strangling a Missouri woman who was eight months pregnant, then cutting out and kidnapping the baby.  The baby survived.

The last woman executed by the US government was Bonnie Brown Heady in 1953, according to US Bureau of Prisons records, for kidnapping and murder.  The US also famously executed Ethel Rosenberg that same year for espionage.

I suspect Montgomery's lawyers will pursue further appeals. But, in lots of prior federal capital cases in recent months, appeals courts (including the Supreme COurt) have consistently refected efforts to slow down the federal machinery of death.

January 2, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 01, 2021

Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62); I stressed in one of those posts that Prez-elect Biden could get started right away in implementing recommendations calling for creating a new "Task Force on Prosecutorial Discretion" and a "Clemency Board."  Especially with so much clemency chatter as Prez Trump's term comes to a close, I am eager to again amplify attention on the clemency recommendation.  Helpfully, this lengthy new Bloomberg piece, headlined "Biden Gets Unlikely Advice on Pardons: Copy Trump, Sideline DOJ," provides some useful background and context.  Here are excerpts:

President Donald Trump’s pardons of some of his closest allies have sparked a political firestorm, but criminal justice reform advocates believe he has done one thing right: sideline the Department of Justice from clemency decisions.  But rather than use that control the way Trump has, those advocates want to see President-elect Joe Biden use it to help non-violent drug offenders with questionable convictions or harsh sentences.  Relying on the DOJ’s Office of the Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars....

Biden’s criminal justice plan proposes a number of reforms and says he will “broadly use his clemency power for certain non-violent and drug crimes.” The campaign would not comment past the plan’s language.  In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It should certainly include people who are formerly incarcerated because they know that walk better than anybody,” said Cynthia W. Roseberry, deputy director of policy in the Justice Division of the American Civil Liberties Union.  “Also include criminal justice reform experts and members of the community who can opine about the fact that we want people to come home.  I’m not suggesting leaving DOJ out,” Roseberry added.  “They can definitely have a prosecutor at the table.  But it should look like the community.”

Though the Biden campaign language does not commit to creating a new clemency infrastructure, the criminal justice reform recommendations from the Biden-Sanders Unity Task Force expressly proposes doing so:

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Long-time readers should not be surprised to hear me vocally advocate for a clemency board given that way back in 2010, I urged then-Prez Obama to structurally change the federal clemency system in this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  Here is a snippet from that piece:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is ... to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

Many others have been talking for many years in many better ways about the idea of an DOJ-independent clemency board or commission, and I especially think of the tireless work of Rachel Barkow and Mark Osler in promoting an improved clemency infrastructure (see, e.g., here and here and here and here).  And I want to here promote all ideas about clemency reform because I now believe when the Biden Administration gives attention to this matter is much more important than exactly how. 

As I noted in this recent post, among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  As detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office; Barack Obama and George W. Bush and Bill Clinton could not be bothered to pick up the clemency pen for a single individual during their first two calendar years in office.  If clemency work and reform is not made a priority in the weeks and months ahead, I fear that real reforms are unlikely to get done at all. 

At this moment, I am drawn to the notion of starting with a "clemency czar," particularly because appointing one initial advisor should be easier and quicker than creating a full clemency board.  And the aforementioned Rachel Barkow and Mark Osler and Cynthia Roseberry are all great names surely ready to serve in this role on day one.  And while ruminating on this topic, other great names of great people long doing great work in the criminal justice space come to mind, like Michelle Alexander and David Singleton and Bryan Stevenson.  (Heck, add in folks like Weldon Angelos, Brittany Barnett, Beth Curtis, Mark Holden, Shon Hopwood, Jessica Jackson and Amy Povah, and I guess it is not too hard to quickly envision a "Dream Team" for a badly-needed clemency board.) 

Some (of many) prior recent related posts on clemency reform:

Some prior related posts on CJUTF recommendations:

January 1, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Chief Justice's "2020 Year-End Report on the Federal Judiciary" provides pandemic perspectives (and pictures)

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary, and nobody will be surprised to hear that the 2020 version of this report from Chief Justice John Roberts is focused on how the judiciary has responded, past and present, to pandemics.  The full 2020 year-end report can be found at this link, and it is worth checking out in full (in part for the pictures showing outdoor court activities in 1918 and 2020).  Here are a few passages that capture the report's substantive spirit:

[J]udges who serve on the Judicial Conference of the United States and its committees — in particular, the Committee on Rules of Practice and Procedure — sprang into action to make possible video and audio conferencing in certain criminal proceedings, with help from Congress through authorization in the CARES Act.  By April, judges around the country were guiding critical court functions from their home offices — or their kitchen tables.

Hearings of all sorts went virtual. Judges quickly (or at least eventually) learned to use a wide range of available audio and video conferencing tools....  Courts have used every available avenue to prepare for resumption of jury trials, the bedrock of fairness in our system of justice.  Judges and court staff have reconfigured spaces in courtrooms around the country.  Many courts have repurposed their largest courtrooms for physical distancing and reconfigured jury boxes to extend into public gallery areas....

All this is a credit to judges and court staff, but also to the citizens who serve as jurors. Judges from around the country report that, where jury trials have resumed, responses to jury summonses have met or exceeded their high hopes for the public’s willingness to participate in the legal system during these very challenging times....  None of this would be achievable without unsung heroes in the judicial branch and throughout government.

Because I had the honor of working within the federal judiciary for a couple of years way back when, and especially because I have an inkling for how challenging judicial work can be even under the very best of circumstances, I am keenly appreciative of all the work being done by federal and state courts nationwide.  It is thus nice to see the Chief Justice conclude his substantive remarks by saying that he is "privileged and honored to thank all of the judges, court staff, and other judicial branch personnel throughout the Nation for their outstanding service."  It is also nice to see the report includes an Appendix on the "Workload of the Courts" with these notable federal criminal justice caseload data:

In the regional courts of appeals, filings fell less than one percent from 48,486 to 48,190.... Criminal appeals fell three percent.

Cases with the United States as defendant grew 16 percent, primarily reflecting increases in social security cases and prisoner petitions....

Criminal defendant filings (including those for defendants transferred from other districts) dropped 20 percent to 73,879.  Defendants charged with immigration offenses, who accounted for 32 percent of total filings, were 25 percent fewer, largely in response to a 70 percent reduction in defendants accused of improper entry by an alien.  The southwestern border districts received 84 percent of 23,618 national immigration crime defendant filings.  Drug crime defendants, who accounted for 29 percent of total filings, fell 17 percent.  Defendants prosecuted for firearms and explosives offenses declined 13 percent.  Filings for defendants accused of fraud decreased 27 percent.  Reductions also occurred in filings related to traffic offenses, property offenses, sex offenses, general offenses, regulatory offenses, justice system offenses, and violent offenses.

A total of 126,970 persons were under post-conviction supervision on September 30, 2020, a reduction of two percent from the total one year earlier.  Of that number, 112,849 persons were serving terms of supervised release after leaving correctional institutions, a decrease of less than one percent.  Cases activated in the pretrial services system, including pretrial diversion cases, decreased 26 percent to 80,603.

January 1, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, December 30, 2020

Two notable end-of-year state supreme court rulings for criminal defendants on sentencing matters

This week has brought two notable new state Supreme Court rulings from the coasts on sentencing issues.  Here are press reports and parts of the starts of the opinions:

From the Boston Globe, "SJC: Judges can grant probation in some 'three strikes' cases"

From the start of the ruling in Massachusetts v. Montarvo, No. SJC-12905 (Mass. Dec 29, 2020):

Colloquially referred to as the "three strikes" law, the habitual offender statute, G. L. c. 279, § 25, enhances the penalty for a defendant who, after two prior convictions resulting in State or Federal prison sentences of three or more years, receives a third felony conviction.  This case requires us to determine whether § 25 (a) of the law allows sentencing judges to impose probation on defendants who fall within its ambit.  We conclude that it does.

From the Los Angeles Times, "Sex offenders can qualify for early parole, California Supreme Court rules"

From the start of the ruling in In re Gadlin, No. S254599 (Cal. Dec. 28, 2020):

In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016.  The initiative amended the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1) (article I, section 32(a)(1)).)  The initiative also directed the Department of Corrections and Rehabilitation (the Department) to “adopt regulations in furtherance of these provisions” and instructed the Secretary of the Department to “certify that these regulations protect and enhance public safety.” (Art. I, § 32, subd. (b) (article I, section 32(b)).)

The Department adopted regulations implementing a nonviolent offender parole consideration process.  Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately sentenced offenders]; see also id., § 3496, subd. (b) [governing indeterminately sentenced offenders].)

We granted review to address the validity of these provisions.  The Department asserts it is authorized by article I, section 32(b) to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction.  Indeed, the Department’s regulations categorize inmates convicted of a registerable sex offense as “nonviolent offenders” unless, among other criteria, they are currently incarcerated for a violent felony listed in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., §§ 3490, subd. (a), 3491, subds. (a), (b), 3495, subd. (a), 3496, subds. (a), (b).)  Nonetheless, the regulations entirely exclude from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense.  We conclude that this categorical exclusion conflicts with the constitutional directive that inmates “convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” (Art. I, § 32(a)(1).)

December 30, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, December 28, 2020

"Algorithmic Decision-Making When Humans Disagree About Ends"

The title of this post is the title of this notable new paper authored by Kiel Brennan-Marquez and Vincent Chiao available via SSRN.  Here is its abstract:

Which interpretive tasks should be delegated to machines? This question has become a focal point of “tech governance” debates; one familiar answer is that machines are capable, in principle, of implementing tasks whose ends are uncontroversial, but machine delegation is inappropriate for tasks that elude human consensus.  After all, if even (human) experts cannot agree about the nature of a task, what hope is there for machines?

Here, we turn this position around.  In fact, when humans disagree about the nature of a task, that should be prima facie grounds for machine-delegation, not against it. The reason comes back to a fairness concern: affected parties should be able to predict the outcomes of particular cases.  Indeterminate decision-making environments — those in which human disagree about ends — are inherently unpredictable in the sense that, for any given case, the distribution of likely outcomes will depend on a specific decision-maker’s view of the relevant end. This injects an irreducible — and, we argue, intolerable — dynamic of randomization into the decision-making process from the perspective of non-repeat players.  To the extent machine decisions aggregate across disparate views of a task’s relevant ends, they promise improvement, as such, on this specific dimension of predictability; whatever the other virtues and drawbacks of machine decision-making, this gain should be recognized and factored into governance.

The essay has two halves. In the first, we elaborate the formal point, drawing a distinction between determinacy and certainty as epistemic properties and fashioning a taxonomy of decision-types.  In the second half, we bring the formal point alive through the case study of criminal sentencing.

December 28, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, December 27, 2020

"Getting Explicit About Implicit Bias"

The title of this post is the title of this effective extended discussion published in the latest issue of Judicatre. which understandibly give particular attention to research regarding criminal case processing.  The piece's preamble explains that, to "better understand the effect of implicit bias in the courtroom, Judge Bernice Donald of the United States Court of Appeals for the Sixth Circuit talked with Professors Jeffrey Rachlinski and Andrew Wistrich of Cornell Law School."  The whole discussion is interesting, and here are some excerpts:

Implicit bias can play a role at every stage of the process, from the first encounter a suspect has with the police through criminal sentencing.  Police might be more inclined to arrest Black suspects and prosecutors might be more apt to pursue cases against Black defendants.  Furthermore, judges might be given different information about Black defendants than white defendants. With disparities at every stage, the effect of implicit bias can snowball.

We do not mean to exonerate judges completely.  As we note below, some evidence suggests that they do impose disparate sentences by race, notwithstanding our research.  Also, judges are responsible for monitoring prosecutors, police, probation officers, and others who might themselves be expressing implicit bias....

There is plenty of evidence that judges are being influenced by litigant race and gender beyond just the experimental studies we have conducted with hypothetical questions.  As an example, studies show that Black defendants receive longer sentences and female defendants receive shorter sentences.  These results have persisted for decades.  Of course, sentencing data can be noisy in the sense that others — probation officers, prosecutors, etc. — are involved in setting the stage for judges’ decisions.  These results, however, dovetail with our experiments in which such factors are controlled....

Many judges are alert to the danger of bias in the courtroom and work to neutralize it.  Some types of implicit bias, however, such as those based on age, skin tone, height, weight, citizenship, etc., also have an influence on judges.  We worry that even judges who are sensitive to racial inequity might overlook some of these other sources of unfairness.

Of course, the suspicion that judges are influenced by race or gender bias is profoundly disillusioning and dispiriting for a society that rightly demands equality in the courtroom.  Disparities in the administration of justice by a judge are particularly hurtful for racial or ethnic minorities and for women, perhaps particularly so when they turn to the courts for justice and redress for the effects of prejudice in the broader society.  Acknowledging the imperfections of the judiciary can be painful for judges — especially those subject to reselection — and can give rise to public criticism and even cynicism.

December 27, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, December 23, 2020

"Versari Crimes"

The title of this post is the title of this new article authored by Stephen Garvey available via SSRN. Here is the abstract:

The versari doctrine alleges that if a person commits a crime, he or she is strictly liable for all the resulting consequences.  This doctrine, which goes back to canon law, doesn't get much attention these days from criminal law theorists.  But it probably should.  A fair case can be made that the doctrine underwrites the felony murder rule, the misdemeanor manslaughter rule, the legal wrong doctrine, constructive malice, the natural and probable consequences doctrine, and the Pinkerton doctrine.  Those doctrines don't have many friends in the academy today, although they endure in positive law despite all the academic criticism.  Because they endure, criminal-law theorists should perhaps pay more attention to the versari doctrine.  Perhaps they should try to understand what the doctrine says and why it seems to have some intuitive appeal to some people, despite not having much intuitive appeal to those inside the academy.  The paper, written for a conference ASU sponsored on mens rea and criminal justice reform, is an effort to better understand the versari doctrine

December 23, 2020 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, December 22, 2020

DOJ produces huge "Final Report" from the work of the President's Commission on Law Enforcement and the Administration of Justice

The day before current Attorney General William Barr is stepping down, the US Department of Justice has released this 300+ page "Final Report" to conclude the work of the Presidential Commission on Law Enforcement and the Administration of Justice.  This press release provides the context for this big document:

Today, following months of virtual meetings, testimony and study, U.S. Attorney General William P. Barr submitted the final report of the President’s Commission on Law Enforcement and the Administration of Justice to the White House.  This report represents the first comprehensive study of law enforcement in more than 55 years.

On Oct. 28, 2019, President Donald J. Trump signed Executive Order No. 13896, which directed the Department of Justice to establish the “Commission on Law Enforcement and the Administration of Justice.”  The purpose of the Commission was to conduct a modern study of the state of American policing and determine specific measures to reduce crime and promote the rule of law.  At the conclusion of this study, the Commission was to issue a report.

“This report is the result of significant effort and commitment by hundreds of working group members, dozens of staff, nearly 200 individual testimonies, and of course the 18 distinguished commissioners, who, as I’ve said before, truly reflect the best there is in law enforcement,” said Attorney General Barr.  “We could not have foreseen the challenges 2020 would present when we set out to accomplish our goal of researching important current issues facing law enforcement and the criminal justice system.  Yet despite these challenges, the Commission produced a thoughtful and comprehensive report.”

At a ceremony in January 2020, Attorney General Barr announced the establishment of the Commission and the individuals who would serve as commissioners.  From January through July, the Commission met formally more than 50 times — adjusting to the challenges brought on by the COVID-19 pandemic — with the goal of making improvements to American law enforcement for years to come.  Throughout that time, the Commission assembled a report that reviewed a variety of important issues affecting law enforcement and their capacity to safeguard American communities.

Though this big report is primarily about policing and is produced by a law enforcement agency rather than by an independent body, I still think it serves as a must-read for sentencing fans and reformers of all stripes.  Here, for example, is one paragraph from the report's executive summary that provides plenty of grist for any reformer's mill:

In addition to public programs that can better treat the social conditions that produce criminal behavior, there are additional elements of the criminal justice system that can complement law enforcement’s efforts.  Specifically, juvenile justice and reentry services are essential and remedial instruments of crime prevention and reduction.  These systems may assist in stopping troubled youths from committing crimes in the future, and also bring adults who have committed crimes in their past back to normal lives of peace and prosperity.  While law enforcement often puts the wheels of criminal justice into motion, there are many ways that judges, prosecutors, defense attorneys, and correctional officials — at various stages of the legal proceedings — can work towards a fairer and more just system that best serves victims, defendants, and the community at large in the collective goal of reducing crime.  To that end, the Commission recommends improved coordination among law enforcement and prosecutors; greater transparency among prosecutors, defense attorneys, and victims as to guilty plea agreements; increased use of treatment courts for certain categories of crimes and defendants; and a refined bail system based on public safety and accountability.

December 22, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Split Michigan appeals court upholds sentencing of mass molester Larry Nassar over claims of misconduct by sentencing judge

As detailed in posts here and here from nearly three years ago, there was a lot of chatter and commentary about the high-profile conduct of the Michigan state sentencing judge during the high-profile state sentencing of Larry Nassar, the former USA Gymnastics team doctor who sexually abused many girls under his care.  Today, as reported in this local press piece, Michigan appeals court judges opined on the sentencing judge's conduct in a split ruling upholding Nassar's sentencing.  Here are the details from the press report:

The Michigan Court of Appeals on Tuesday denied an appeal from serial sex offender Larry Nassar but one judge chastised the conduct of Ingham County Circuit Judge Rosemarie Aquilina during his sentencing. In a 22-page opinion, a three-judge panel split 2-1 against Nassar's effort to be resentenced by a new judge.  The former Michigan State University doctor was accused of sexually assaulting hundreds of women under the guise of medical treatment over more than two decades.  He also collected 37,000 images and videos of child pornography on his computer.

Nassar was sentenced in three courts to what amounted to a life sentence but appealed a 2017 sentence of 40-175 years issued by by Aquilina.  Though Nassar admitted guilt, he argued that his Ingham County sentence was invalid due to Aquilina's bias based on comments she made during his sentencing.

"Although Nassar argues that the judge 'made numerous statements throughout the proceedings indicating that she had already decided to impose the maximum allowed by the sentence agreement even before the sentencing hearing began,' the fact of the matter remains that the judge imposed a minimum sentence that fell within the range of Nassar’s agreed-upon plea," wrote appeals court Judges Thomas C. Cameron and Michael F. Gadola, who ruled against Nassar's appeal.

"Once a defendant has been adjudged guilty in a fair proceeding, 'the presumption of innocence disappears,'" Cameron and Gadola wrote. "A trial judge 'may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.' We conclude that the judge’s imperfect articulation of these principles does not establish bias or an appearance of impropriety."

But appeals court Judge Douglas Shapiro dissented, saying the case is "bad facts making bad law." He wrote that Nassar is guilty for abusing his position of trust and the sentence is not disproportionate outside the range of his plea agreement. "I therefore sympathize with the majority’s wish to overlook the trial court’s errors," Shapiro wrote. "However, doing so makes bad law. The process by which this sentence was imposed challenges basic notions of judicial neutrality, due process, the right to counsel, and the use of social media by judges. The errors at sentencing were neither minor nor isolated and by approving of them, even if reticently, the majority invites further distortions of sentencing procedures."

Shapiro also said, "contrary to the prosecution’s argument on appeal, the responsibility of a judge to render decisions impartially does not end with a guilty verdict or plea."  "The facts that come to light during a trial or sentencing may be grounds for a fair and impartial judge to impose a harsh sentence, but even when doing so, it is the judge’s responsibility to maintain judicial neutrality, and determine a proper sentence on the basis of the defendant’s crimes and character rather than the judge’s personal anger, or the extent of revenge sought by the defendant’s victims," Shapiro wrote....

As the decision spread on Twitter, some expressed relief at the court's ruling. Kaylee Lorincz, one of the women abused by Nassar, tweeted that the decision was, "the best christmas gift I could ever ask for."

Jacob Denhollander, the husband of Rachael Denhollander — the first woman to publicly accuse Nassar — said he was glad he lived in America where someone like Nassar can seek appeals and find due process.  "The reminders, trauma, & triggers for victims means that the justice system is not primarily the place where victims find closure & peace," Denhollander tweeted. "Closure and peace comes from the communal response of belief and validation of the victims and their own ability to construct an identity apart from what was done to them. The justice system can be part of that, but can also be traumatizing."

Nassar was charged in Ingham County in 2017 with multiple counts of first-degree criminal sexual conduct for abuse that occurred from 1998 to 2015. He was also charged in Eaton County with multiple counts of criminal sexual conduct, and also in federal court for possessing child pornography. In addition to his physician role at MSU, Nassar treated scores of athletes including the nation's top gymnasts while working for USA Gymnastics and the U.S. Olympic Committee....

Nassar argued that Aquilina showed bias in numerous ways such as saying that she had signed his "death warrant" during sentencing and also saying that the law did not allow her to impose cruel and unusual punishment on him. "If it did, I have to say I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow someone or many people to do to him what he did to others," said Aquilina.

In addressing Aquilina's comments, and other comments, during sentencing, the Cameron and Gadola wrote that Nassar had admitted guilt so the presumption of innocence had ended. "The sentencing judge’s statement was wholly inappropriate," they wrote. "In essence, the judge stated that she would allow physical retribution against Nassar if it were not constitutionally prohibited."

"Nassar has failed to establish plain error given that the sentencing judge’s comments did not indicate actual bias or prejudice," the majority judges continued. "We further conclude that Nassar has failed to establish that the alleged actual bias and/or prejudice affected his substantial rights. Specifically, as part of the plea agreement, Nassar agreed to a guidelines minimum sentence range between 25 and 40 years’ imprisonment for each count, with the sentencing judge having the discretion to determine the minimum sentence within that range as well as the discretion to determine the maximum sentence for all seven counts.

But Shapiro said Aquilina erred. "A guilty verdict terminates the presumption of innocence but it does not terminate a judge’s responsibility to exercise her judicial responsibilities consistent with the law and the Code of Judicial Conduct," he wrote.

I have quoted at length from this article because I cannot yet find the opinion online.  But that opinion is surely not to be the last work on these matters: I presume Nassar will appeal this decision up to the Michigan Supreme Court and perhaps thereafter in federal habeas (even though his various state and federal sentences for his many crimes surely ensure he will never see the outside of a prison even if he were to prevail on some of these matters).

Prior related posts:

UPDATE: A helpful reader via the comments flagged that the 16-page "unpublished" majority opinion is available here, and the six-page dissent is available here.

December 22, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Monday, December 21, 2020

"Equality in Multi-Door Criminal Justice"

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

As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex.  This essay, written for a symposium on multi-door criminal justice, explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. 

Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders.  But we need not view that as fatal to multi-door criminal justice.  Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals.  At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones.  The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal — or unequal in more palatable ways — than what we have now.

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

Saturday, December 19, 2020

Split Sixth Circuit panel decides FIRST STEP Act's less severe 924(c) mandatory minimums are applicable to resentencing

In this post a full two years ago right after the enactment for the FIRST STEP Act, I flagged some issues regarding which "pipeline" defendants might be able to benefit from the Act's reduced sentencing terms.  (By "pipeline," I meant cases in which offense conduct took place before passage of the FIRST STEP Act, but a sentence was not fully finalized when the Act became law.)  In that post, I noted that Congress in the FIRST STEP Act had expressly provided that the reduced 924(c) mandatory minimums were to be applicable "if a sentence for the offense has not been imposed as of such date of enactment" of the Act.  And then I pondered in that post: "Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?"

A Sixth Circuit panel this past week spoke to these issues in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020) (available here).  The panel split, with the majority eager to give broad application to the FIRST STEP Act's reduced sentencing terms.  The Henry court gives various justifications for its reading of the applicable provision of the Act, including its legislative history: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Judge Gibbons writing in dissent sees matters differently, explaining "Given the vast sentencing disparities depending on whether the First Step Act applies — 55 years versus 15 years in this case — it is unclear why Congress chose to extend the Act’s protection to a defendant sentenced on the date of enactment but not to a defendant sentenced just one day prior. But whatever the wisdom of that decision, 'Congress has . . . drawn a line in the sand.'"

I am very much in favor of the approach adopted by the majority here, which essentially recognizes that absent a clear "line in the sand" for limiting application of the newer, less severe sentencing terms, it makes sense to give those terms the broadest possible application.  As the dissent notes, a full 40 years of imprisonment is at issue in this matter.  As I see it, if Congress is not 100% clear that an extra four decades of time in a cage  must be imposed, courts ought not mandate its imposition.

December 19, 2020 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Ohio Supreme Court strikes down "anti-procreation community-control condition" for man convicted for failing to pay child support to mothers of his 11 children

The Ohio Supreme Court yesterday rendered an interesting decision, by a 6-1 vote, striking down an interesting community control condition in Ohio v. Chapman, No. 2020-Ohio-6730 (Ohio Dec. 18, 2020) (available here). Here is the start and key concluding paragraphs from the majority opinion:

A man was convicted for failing to pay child support to the mothers of his 11 children and sentenced to community control.  One of the conditions of community control imposed by the court was that the man “make all reasonable efforts to avoid impregnating a woman” during his sentence.  The question before us is whether that condition was appropriate.  We conclude that it was not....

Chapman’s failure to properly prioritize his obligations toward his children and pay support as he is able could prompt several conditions of community-control sanctions that would reasonably relate to his offense.  The trial court properly ordered Chapman to obtain and maintain full-time employment.  It could have gone further in this direction: it might have ordered him to participate in job training, placed him in a program that would ensure that he was working and that child support was being deducted from his paycheck, required that he undergo education in financial planning and management, or placed restrictions on his spending.  All of these would be reasonably related to Chapman’s crime of nonpayment of child support.  But as long as the crime of nonsupport depends on an offender’s ability to pay, a prohibition requiring Chapman to “make reasonable measures” to avoid fathering another child during his term of community control is not.

The lack of a fit between the offense of which Chapman was convicted and the availability of other more effective conditions leads to the conclusion that the condition “unnecessarily impinge[d] upon the probationer’s liberty.”  Jones at 52.  On remand, the trial court must remove the anti-procreation condition, but may impose other conditions that are appropriately tailored to the goals of community control.

Justice French was the lone dissenter, and her opinion concluded with these points:

In Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 20-21, this court concluded that an anti-procreation community-control condition was overly broad because it did not contain a mechanism for lifting the condition.  But here, the trial court required only that Chapman make reasonable efforts to avoid impregnating another woman during his five-year community-control period.  The trial court then outlined a minimum of 12 ways by which Chapman could have the condition lifted.  This is not a case in which the trial court decided to impose an anti-procreation community-control condition for minor instances of failure to pay child support.  Chapman currently has at least 11 children that he is not supporting, and his child-support arrearage at the time of his 2018 resentencing was already over $200,000.  The trial court found that Chapman’s violations of his prior child-support obligations were “egregious and systemic.”  Under these facts, its anti-procreation condition is not overly broad.

December 19, 2020 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Thursday, December 17, 2020

"Expanding the Reach of Progressive Prosecution"

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

"Progressive Prosecutors" are flourishing in jurisdictions across the country.  The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be.  This Essay explores this theme by discussing, first, the rise of progressive prosecution and, second, how this movement’s initial success can stimulate the long-overdue development of a generally applicable, normative theory of the prosecutor’s role.  It suggests a conceptualization of the American prosecutor as a caretaker for the criminal justice system, who should default to lenience when that system becomes so congested and punitive that it cannot deliver on its constitutional ideals.

Even as progressive prosecution remains an ongoing source of reform in liberal jurisdictions, it is important to consider the movement’s impact outside of those jurisdictions. Nonprogressive prosecutors and the voters who elect them are also open to reform.  But they are not likely to embrace the “progressive” label or its accompanying rhetoric.  The key to the overall success of progressive prosecution in the long run may be to invite these prosecutors in and offer them an alternative frame for prosecutor-driven reform.  A new unifying norm of prosecutorial behavior, better suited to the modern era, could turn out to be the most important legacy of progressive prosecution.

December 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, December 16, 2020

Lots of notable pardon headlines as we approach the last month of Prez Trump's clemency powers

In part because Prez Trump has not used his clemency power since last month's Thanksgiving week pardon for Michael Flynn, I have managed to avoid discussing the out-going President's potential pardon spree for many days now.  But there is, unsurprisingly, a cacophony of clemency chatter in various media, and highlighted by these recent piece:

From CNN, "'It's turned crazy': Inside the scramble for Trump pardons"

From the Daily Beast, "Trump Is Considering Clemency for Silk Road Founder"

From Forbes, "Trump And Pardons ... Here’s A Case That Might Interest Him"

From Inquisitr, "Justin Amash Calls On Donald Trump To Offer Clemency To Reality Winner: ‘Her Punishment Is Unjust’"

From Newsweek, "Will Donald Trump Pardon Edward Snowden? 'Anything Is Possible'"

From the New Yorker, "What are the Odds That Trump Pardons Himself?"

From WION, "Australian MP urges Donald Trump to pardon Julian Assange before leaving White House"

Here is a snippet from the CNN piece:

Because Trump has shown little interest in using the Justice Department's Pardon Attorney system for assessing requests for executive clemency, petitioners are approaching the White House directly, calling or emailing senior adviser Jared Kushner, chief of staff Mark Meadows or White House counsel Pat Cipollone -- when they can't get ahold of Trump himself....

If there is a governing principle in who appears most likely to secure clemency, it is someone the President either knows personally or who has powerful connections lobbying on their behalf.  At least one person working on behalf of clients seeking pardons said they hoped their loyalty to Trump over the past four years would pay off now.

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.  He has largely frozen out those advisers and associates who do not seem on the same page.  One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn't heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted -- or could be targeted in the future -- for political ends. That's in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

A few recent related posts:

December 16, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

A view of plea discounts from across the pond

The Sentencing Academy, an expert group which examines sentencing in England and Wales, has published new report, "Sentence Reductions for Guilty Pleas: A review of policy, practice and research." This new report was authored by by Jay Gormley, Julian V. Roberts, Jonathan Bild and Lyndon Harris, and here is part of its executive summary:

Most convictions in England and Wales in the Crown Court and the magistrates’ courts arise as a result of the defendant entering a guilty plea.  Courts are explicitly required to consider the guilty plea when passing sentence by section 73 of the Sentencing Code (previously section 144 of the Criminal Justice Act 2003).  Defendants who plead guilty and who waive their right to a trial are normally entitled to a sentence reduction.  All common law jurisdictions offer sentence reductions to defendants who forgo their right to trial and instead plead guilty.

The primary source of guidance in England and Wales regarding the levels of reduction appropriate in cases of a guilty plea is the definitive guideline issued by the Sentencing Council in 2017 to replace an earlier guideline issued in 2007....

The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction.  If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded.  The guideline also specifies that one-third is the maximum reduction appropriate across all cases.  A plea entered after the first stage attracts a maximum reduction of one-quarter.  The reduction awarded should decrease to a maximum of one-tenth on the first day of trial.  The guideline includes a series of exceptions to the recommended reductions.  These allow a departure from the recommended maximum reductions.  For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner.  In addition, there is a separate regime for young defendants....

The 2017 guideline modified a previous guideline issued in 2007.  The new guideline sought to increase the consistency of plea-based reductions to sentence and to encourage defendants who intended to plead guilty to do so at the first opportunity — rather than later in the criminal process.  In the years preceding 2017, a significant proportion (approximately one-third) of trials were avoided close to the trial date for different reasons.  A proportion of these so-called ‘cracked trials’ arose as a result of the defendant entering a guilty plea well after the first opportunity. The guideline was not intended to affect the overall rate of guilty pleas entered.

Research conducted prior to the introduction of the latest guideline revealed that courts were broadly following the 2007 guideline’s recommended reductions.  Thus, almost all (89%) of defendants who entered an early plea received the one-third reduction recommended by the 2007 guideline.  The empirical pattern of reductions diverges to a greater degree for pleas entered at a later stage due to circumstances such as late service of evidence or late compliance with disclosure obligations.  No comparable data have been published to determine whether the pattern of sentence reductions has changed as a result of the new guideline.

December 16, 2020 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (0)

Tuesday, December 15, 2020

A reminder of how the Bill of Rights is mostly about limiting and regulating the police power on Bill of Rights Day

December 15, 1791, is the day when the new United States of America ratified the Bill of Rights, the first ten amendments to the U.S. Constitution, and so today is called Bill of Rights Day.  The National Constitution Center has this webpage honoring the day, though US Courts website rightly declares here that "Bill of Rights Day is Every Day."  Though I do not want to diminish or deprive civil lawyers from celebrating this day, I cannot miss the chance to reiterate a point I made in prior writings about the criminal justice tilt of the Bill of Rights:

Criminal justice power is an extreme form of government power and mass incarceration is an oppressive form of big government.  The Framers fully understood this when they enacted a Bill of Rights that is almost exclusively focused on limiting and regulating the exercise of police power.[FN]  Nine of the first ten Amendments to the Constitution set forth formal or informal safeguards against different possible forms of extreme uses of the police power.

FN  Though the Fourth, Fifth, Sixth and Eighth Amendments are most commonly mentioned (and litigated) when considering limits on the operation of modern criminal justice systems, one might readily view every Amendment of the Bill of Rights save the Seventh as articulating a restriction on the operation of the police power.  See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 207 (3d ed. 2005) (noting that the “leaders of the Revolution . . . felt that the British had abused criminal justice” and that the “Bill of Rights . . . contained a minicode of criminal procedure”).  

So Happy Bill of Rights Day, everyone!

December 15, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)