Monday, January 17, 2022

Latest issue of Dædalus explores "Reimagining Justice: The Challenges of Violence & Punitive Excess"

Wi22_Cover_ForWebThe Winter 2022 issue of the journal Dædalus has a series of essay on the topic of "Reimagining Justice: The Challenges of Violence & Punitive Excess."  Here is the issue's introduction from this issue page and a listing of the article titles and authors:

America has the highest incarceration rate in the world. Criminal justice policies of punitive excess and unequal protection under the law have sustained racial exclusion and added to the harsh conditions of poverty.  The Winter 2022 issue demands that we imagine a different kind of public safety that relies not on police and prisons, but on a rich community life that has eliminated racism and poverty.  Many of the solutions will lie beyond the boundaries of the criminal justice system and public policy, yet much of the work is already being done in communities around the country. And these efforts share, as the essays in this issue suggest, a common commitment to the values of healing, reconciliation, and human dignity.

Violence, Criminalization & Punitive Excess by Bruce Western and Sukyi McMahon

The Story of Violence in America by Kellie Carter Jackson

The Problem of State Violence by Paul Butler

Public Health Approaches to Reducing Community Gun Violence by Daniel W. Webster

Seeing Guns to See Urban Violence: Racial Inequality & Neighborhood Context by David M. Hureau

Developmental & Ecological Perspective on the Intergenerational Transmission of Trauma & Violence by Micere Keels

The Effects of Violence on Communities: The Violence Matrix as a Tool for Advancing More Just Policies by Beth E. Richie

Faces of the Aftermath of Visible & Invisible Violence & Loss: Radical Resiliency of Justice & Healing by Barbara L. Jones

The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America by Khalil Gibran Muhammad

Criminal Law & Migration Control: Recent History & Future Possibilities by Jennifer M. Chacón

Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts by Nicole Gonzalez Van Cleve

Recognition, Repair & the Reconstruction of “Square One” by Geoff K. Ward

Knowing What We Want: A Decent Society, A Civilized System of Justice & A Condition of Dignity by Jonathan Simon

All of these articles (along with abstracts) can be accessed at this webpage.

January 17, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, January 13, 2022

California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin

Under California law, the Governor reviews any recommendation of parole by a convicted murderer.  As explained in this new Los Angeles Tomes op-ed, California Governor Gavin Newsom has decided to reverse a parole decision in the high-profile case of Sirhan Sirhan.  Here is how the op-ed starts:

In 1968, Sirhan Sirhan assassinated Sen. Robert F. Kennedy just moments after Kennedy won the California presidential primary.  Sirhan also shot and injured five bystanders. Decades later, Sirhan refuses to accept responsibility for the crimes.

California’s Board of Parole Hearings recently found that Sirhan is suitable for parole. I disagree. After carefully reviewing the case, including records in the California State Archives, I have determined that Sirhan has not developed the accountability and insight required to support his safe release into the community. I must reverse Sirhan’s parole grant.

A copy of the Governor’s parole reversal decision can be found here.  Interestingly, and surely not coincidentally, Gov Newsom also decided today to announce a large number of clemency grants, as this press release details: "Governor Gavin Newsom today announced that he has granted 24 pardons, 18 commutations and 5 reprieves."

Prior related posts:

January 13, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Thursday, January 06, 2022

"Error Aversions and Due Process"

The title of this post is the title of this notable new paper now on SSRN authored by Brandon Garrett and Gregory Mitchell. Here is its abstract:

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty.  This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions.  While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and false convictions to be errors of equal magnitude.  Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent.  Indeed, a sizeable minority views false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free.  These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and more conviction prone than the minority of potential jurors who agrees with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy.  Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not disposed to hold the state to its high burden.  Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pre-trial screening of criminal cases and stricter limits on prosecution evidence.  Furthermore, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions such as bail and sentencing reform.  Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

January 6, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, January 05, 2022

Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes

Former federal prosecutor Barbara McQuade has this notable MSNBC opinion piece that makes a full-throated argument for throwing the book ay former Theranos founder Elizabeth Holmes. I recommend the piece in full, and here are excerpts:

Some people steal money with guns.  Other people steal money with lies.  In a court of law, they’re all crooks. But not all crooks are treated the same by the justice system, a fact Elizabeth Holmes may be counting on when it comes to her sentencing....  White-collar criminals like Holmes may not get their hands dirty in the traditional sense, but their conduct is no less criminal than a stickup in an alley.  In fact, upper-class offenders like Holmes might be even more reprehensible; while street crime is often motivated by need, white-collar crime is usually motivated by greed....

The government quantified Holmes’ investor fraud, arguing it amounted to more than $140 million, a figure that will largely influence her eventual sentence. Federal sentencing guidelines consider a number of factors, including the amount of money involved in the scheme. Based on that number, as well as enhancements and the sophistication of her scheme, Holmes is likely looking at a sentence between 14 and 17 years.

Sentencing is a key inflection point for disparities in the criminal justice system.  But will a judge actually give Holmes a 15-year sentence? Holmes’ defense attorneys, like the attorneys of many criminals before her, will certainly try to argue that the sentencing guidelines in white-collar cases are simply “too high.”  This argument has worked with judges in the past, and high-priced attorneys know that judges can reduce the sentence considerably in a fraud case, as long as they articulate a good reason. (Unlike in criminal cases involving drugs or guns, for example, Holmes does not face a mandatory minimum sentence.)...

Perhaps because judges see offenders who look like them or who share similar backgrounds, they often bite on the argument that sentences for white-collar crimes should be something less than the guidelines range.  I have heard defense attorneys argue that their clients have already been punished enough through societal shame.  You can imagine one of these white-collar defendants lamenting to his lawyer that he can’t even walk through the country club dining room without getting a nasty look from a fellow member.

The other advantage white-collar defendants enjoy at sentencing is their ability to showcase a life of good deeds and letters of support.  An upper-income defendant can often point to service on boards or donations to charitable causes as mitigating factors.  Here again we find problematic disparities baked into the justice system: A low-income defendant lacks the resources to amass anything resembling that kind of track record.  Similarly, while a defendant like Holmes can likely find prominent people to write her letters of support, a defendant lacking her resources usually also lacks the connections needed to mount a similar campaign.

Another argument often made by defense attorneys in white-collar cases is that incarcerating their clients would be a waste of resources because they pose no threat to public safety.  This may be true, but the federal sentencing statute provides that the purpose of sentencing also includes deterrence and just punishment.  Deterrence is especially important in white-collar cases because these are crimes that are carefully planned. No one commits investor fraud in the heat of passion. If defendants who perpetrate massive fraud can get away with a slap on the wrist, then others will calculate that it is worth the gamble to do the same.  A strong sentence in white-collar cases can provide an important data point in that calculation. And fraud is not an inherently victimless crime.

As we think about ways to address racial and economic disparities in the criminal justice system, we should consider not only the disproportionately long sentences that are imposed on street criminals.  We should also consider the paltry ones that are meted out to the wealthy.  We will find out soon enough how Elizabeth Holmes’ sentence does or does not contribute to this pattern.

Because I do not think all that many federal defendants (even "wealthy" ones) actually do get "paltry" sentences — unless and until they cut a special deal with a federal prosecutor, see, e.g., Jeffrey Epstein's first pass — I think we generally need to worry a whole lot more about disproportionately long federal sentences than about problematically short ones.  Still, this commentary  does usefully highlights how advantaged defendants are often better able to present mitigating sentencing factors than disadvantages ones.  For me, that provides a reason for the system to work harder to help the disadvantaged, not a reason to slam the advantaged.  As I expressed in an article nearly 15 years ago, it always worries me when an emphasis on sentencing consistency  fuels "a leveling up dynamic"  that pushes sentences to be more consistently harsh.

Prior related post:

January 5, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (8)

“A Family-Centered Approach to Criminal Justice Reform.”

The title of this post is the title of this interesting new report authored by Christopher Bates, a legal fellow at the Orrin G. Hatch Foundation.  This 100+-page report is styled a "Hatch Center Policy Review," and here is part of its introduction:

Conversations about criminal justice typically center around two groups of individuals: individuals who are convicted of crimes, and individuals who are victims of crime.  The former receive perhaps the lion’s share of attention, as policymakers and commentators debate what consequences they should face, how such consequences should be meted out, what procedural protections should apply, and what can be done to reduce the likelihood that an individual will offend or reoffend. As to victims of crime, discussions may focus on the individual level — how to ensure justice is done in particular cases — or on a broader level—what can be done to reduce crime and improve public safety.

There is another group, however, that can and must be part of the conversation — the family members of convicted individuals.  These include spouses and intimate partners, parents and siblings, and, perhaps most importantly, children....

For decades, researchers have documented the deleterious effects that incarceration and criminal involvement have on the families of individuals who engage in criminal activity. They have also recorded the ways in which strong family ties benefit communities and reduce recidivism. Taking into account both sides of this equation—the impacts on, and the impacts of, family members — is essential to designing effective criminal justice policy.

This paper seeks to do just that — to suggest an approach to criminal justice policy that builds on the decades of research regarding the interrelationship between family ties, incarceration, and criminal behavior....

This paper proceeds in five parts.  Part I surveys the research on family relationships, incarceration, and recidivism, with a focus on how incarceration impacts family members and children and how family relationships affect recidivism.  It also discusses the research on prison visitation and recidivism and how maintaining stronger family ties during incarceration can lead to better reentry outcomes.  Part II turns to the topic of prison policy and how this research can inform decisions about inmate placement, visitation, and contact with family members.  Part III considers the issue of reentry and how policymakers can design laws and programs that aid, rather than impede, the ability of formerly incarcerated individuals to find employment, housing, and other necessities so they can provide for their families and avoid cycles of recidivism and reincarceration.  Part IV turns to punishment and asks what insights a family-centered approach to criminal justice reform can offer regarding sentencing practices and determining what conduct should be subject to criminal penalties in the first place.  It suggests that a principle called parsimony — which says policymakers should seek the least amount of criminal punishment necessary to accomplish a law’s legitimate ends — can fit well with a family-centered approach because it seeks to avoid inflicting more harm than is necessary on convicted individuals and their families.  Part V discusses police reform and offers suggestions for how the principles that can be drawn from the research described in this paper can inform discussions about improving police transparency, accountability, and officer-resident interactions.  A brief conclusion follows.

January 5, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, January 04, 2022

Fascinating sentencing sentiments and commitments in new policy memo from new Manhattan DA

A notable new staff memo from the new Manhattan DA is making new headlines, such as this notable one from the New York Post: "Manhattan DA to stop seeking prison sentences in slew of criminal cases."  Here is a bit of context from the press piece:

Manhattan’s new DA has ordered his prosecutors to stop seeking prison sentences for hordes of criminals and to downgrade felony charges in cases including armed robberies and drug dealing, according to a set of progressive policies made public Tuesday.

In his first memo to staff on Monday, Alvin Bragg said his office “will not seek a carceral sentence” except with homicides and a handful of other cases, including domestic violence felonies, some sex crimes and public corruption. “This rule may be excepted only in extraordinary circumstances based on a holistic analysis of the facts, criminal history, victim’s input (particularly in cases of violence or trauma), and any other information available,” the memo reads.

Assistant district attorneys must also now keep in mind the “impacts of incarceration” including on public safety, barriers to housing and employment, financial cost and race disparities, Bragg instructed.

In cases where prosecutors do seek to put a convict behind bars, the request can be for no more than 20 years for a determinate sentence, meaning one that can’t be reviewed or changed by a parole board. “The Office shall not seek a sentence of life without parole,” the memo states.

This "first memo to staff" includes a three-page introductory accounting of DA Bragg's vision of the work of his office, as well as a seven page "Policy & Procedure Memorandum." These documents, both available here, are fascinating reads and here are just a few notable excerpt from these documents (with footnotes, numbering and some context left out):

I have dedicated my career to the inextricably linked goals of safety and fairness. This memo sets out charging, bail, plea, and sentencing policies that will advance both goals. Data, and my personal experiences, show that reserving incarceration for matters involving significant harm will make us safer....

Invest more in diversion and alternatives to incarceration: Well-designed initiatives that support and stabilize people – particularly individuals in crisis and youth – can conserve resources, reduce re-offending, and diminish the collateral harms of criminal prosecution....

Focus on Accountability, Not Sentence Length: Research is clear that, after a certain length, longer sentences do not deter crime or result in greater community safety.  Further, because survivors and victims of crime often want more than the binary choice between incarceration and no incarceration, we will expand our use of restorative justice programming....

The Office will not seek a carceral sentence other than for homicide or other cases involving the death of a victim, a class B violent felony in which a deadly weapon causes serious physical injury, domestic violence felonies, sex offenses in Article 130 of the Penal Law, public corruption, rackets, or major economic crimes, including any attempt to commit any such offense under Article 110 of the Penal Law, unless required by law.  For any charge of attempt to cause serious physical injury with a dangerous instrument, ADAs must obtain the approval of an ECAB supervisor to seek a carceral sentence....

ADAs shall presumptively indict both top counts and lesser included counts when presenting cases to the grand jury, permitting a wider range of statutorily permissible plea bargaining options. This presumption can be overcome with supervisory approval....

For any case in which a person violates the terms of a non-carceral sentence or pre-plea programming mandate, the Office will seek a carceral “alternative” only as a matter of last resort. The Office will take into account that research shows that relapses are a predictable part of the road to recovery for those struggling with substance abuse, and the Office will reserve carceral recommendations for repeated violations of the terms of a mandate.

January 4, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Tenth Circuit panel find sentence increase for open plea to be procedurally unreasonable

One of many challenges in the world of sentencing policy and practice, especially when it comes to appellate review, is that a sentencing judge who often extensively explains his or her sentencing decision-making at length is often more likely to articulate a legally problematic reason that then provides the basis for a sentence reversal.   This reality is demonstrated in a new Tenth Circuit panel decision in US v. Cozad, No. 20-3233 (10th Cir. Jan. 3, 2022) (available here).  Cozad is a really interesting opinion for lots of reasons, and it starts with the district court at sentencing explaining why the defendant was here getting a sentence a few months above the bottom of the guideline range in this particular way:

[I]t’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low end guideline range.  But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

Here is how the Tenth Circuit panel framed the issue that this statement of sentencing reasons presented on appeal:

This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is.

There are lots of parts to the opinion that follows which serves as an effective overview of various aspects of reasonableness review and plea policies and practices. I highly recommend the full opinion for federal sentencing fans, and here are some notable excerpts (with lots of cites omitted):

[A]lthough the district court stated that its practice was not “a hard-and-fast rule by any means,” the court did not explain why it was applying the rule in Ms. Cozad’s case.  Similarly, although the district court made a passing reference to “the agreements that typically happen in a plea agreement,” the court did not specify what those “agreements” are. On this record, therefore, we cannot but conclude that the district court gave Ms. Cozad a longer sentence than she otherwise would have received simply because she pled guilty without a plea agreement. Whether it was permissible for the district court to do so appears to be a question of first impression in this or any other circuit....

For reasons of history, as well as congressional intent, appellate courts have interpreted § 3553(a) liberally.  Nevertheless, a district court does not enjoy boundless discretion with respect to the facts it relies on at sentencing.... Even when the fact ostensibly relates to the defendant’s conduct or characteristics, its consideration may be grounds for remand when the fact has no bearing on any of the aims of punishment set forth in § 3553(a)(2)....

The government argues that a district court may consider the absence of a plea agreement because such agreements often include certain conditions, such as appellate waivers.... When the parties reach an agreement, a district court can evaluate the terms, including any waivers, in the context of the agreement as a whole to determine the degree to which the waivers may show some additional acceptance of responsibility. By contrast, when the defendant enters an open plea, the court may not know whether any plea agreement was offered, let alone under what terms. Indeed, there is no evidence in this case that an appellate waiver was ever discussed. In these circumstances, without more information, it is unreasonable to penalize the defendant for the absence of an appellate waiver in a nonexistent agreement....

The government further argues that courts may “for uniformity purposes” grant “additional leniency” to defendants who enter into plea agreements and withhold it from those who do not.  The government reasons that, were a court required to sentence a defendant who pleads open “to the same sentence he would have had, had he taken a plea agreement,” there would be “no compelling reason” for a defendant to accept the conditions of a plea bargain.  We are not convinced....

[E]ven in cases where there is only a single viable charge, the government could threaten to recommend a harsher sentence or to pursue an aggressive interpretation of the guidelines.  Consequently, because courts are free to take the government’s recommendation into account, a defendant who refuses to plea bargain would still risk receiving a higher sentence in many cases.

More fundamentally, the government’s argument fails because providing a “compelling reason” for a defendant to enter a plea agreement, whether by granting “additional leniency” or withholding it, is not a valid sentencing rationale.  Section 3553(a) provides that courts are to impose no more punishment than is necessary to comply with the four penological goals enumerated in § 3553(a)(2). When a court imposes a sentence to achieve some other purpose, that sentence is unlawful.

January 4, 2022 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, January 03, 2022

"Racial Attitudes and Criminal Justice Policy"

The title of this post is the title of this lengthy new paper soon to be published in the journal Crime and Justice.  The article is authored by Francis Cullen, Leah Butler and Amanda Graham, and here is its abstract:

Empirical research on public policy preferences must attend to Whites’ animus toward Blacks.  For a quarter-century, studies have consistently found that Kinder and Sanders’s four-item measure of “racial resentment” is a robust predictor of almost every social and criminal justice policy opinion.  Racial animus increases Whites’ opposition to social welfare policies that benefit Blacks and their support for punitive policies that disadvantage this “out-group.”  Any public opinion study that fails to include racial resentment risks omitted variable bias.  Despite the continuing salience of out-group animus, recent scholarship, especially in political science, has highlighted other racial attitudes that can influence public policy preferences.  Two developments are of particular importance.  First, Chudy showed the progressive impact of racial sympathy, a positive out-group attitude in which Whites are distressed by incidents of Blacks’ suffering (such as the killing of George Floyd).  Second, Jardina and others documented that Whites’ in-group racial attitudes, such as White identity/consciousness or white nationalism, have political consequences, reinforcing the effects of racial resentment.  As the United States becomes a majority-minority nation, diverse in-group and out-group racial attitudes are likely to play a central role in policies — including within criminal justice — that the public endorses.

January 3, 2022 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

Thursday, December 30, 2021

"How the Economic Loss Guideline Lost its Way, and How to Save It"

I have been overdue in blogging about this recent article which shares the title of this post and was published earlier this year in the Ohio State Journal of Criminal Law.  This piece was authored by Barry Boss and Kara Kapp, and it is still very timely as we think about priority concerns for a new US Sentencing Commission (whenever it gets members).  In addition, the enduring issues discussed in this article could soon become a focal point of a very high-profile sentencing if a jury brings back fraud convictions against Elizabeth Holmes.  Here is this article's introduction:

This Article revisits a stubborn problem that has been explored by commentators repeatedly over the past thirty years, but which remains unresolved to this day.  The economic crimes Guideline, Section 2B1.1 of the United States Sentencing Manual, routinely recommends arbitrary, disproportionate, and often draconian sentences to first-time offenders of economic crimes.  These disproportionate sentences are driven primarily by Section 2B1.1’s current loss table, which has an outsized role in determining the length of an economic crime offender’s sentence.  Moreover, this deep flaw in the Guideline’s design has led many judges to lose confidence entirely in the Guideline’s recommended sentences, leading to a wide disparity of sentences issued to similarly situated economic crime offenders across the country.  Accordingly, this Guideline has failed to address the primary problem it was designed to solve — unwarranted disparities among similarly situated offenders.  Worse still, it not only has failed to prevent such unwarranted disparities, its underlying design actively exacerbates them.  In the wake of the United States Sentencing Commission’s recent launch of its Interactive Data Analyzer in June 2020, the authors have identified new evidence that this pernicious problem continues to persist.

In Part I, we review the history and purposes of the Sentencing Guidelines, generally, and the economic crimes Guideline specifically.  In Part II, we explain how the current version of the economic crimes Guideline operates in practice, the extraordinarily high sentences it recommends in high-loss cases, and the resulting overemphasis on loss that overstates offenders’ culpability.  In Part III, we analyze data made available through the Commission’s Interactive Data Analyzer and discuss our findings.  In Part IV, we offer a series of reforms designed to restore the judiciary’s and practitioners’ respect for this Guideline so that it may serve its animating purpose — to reduce unwarranted sentencing disparities among similarly situated offenders

December 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

Monday, December 27, 2021

Early preview of SCOTUS cases considering criminal convictions for doctors opioid prescribing practices

I briefly noted the interesting federal criminal drug cases that the Supreme Court took up in early November in this post.  With the top-side briefs now being submitted to SCOTUS, this local press article, headlined "U.S. Supreme Court will hear case of Alabama doctor who prescribed powerful opioids," provides a somewhat fuller preview. Here are excerpts:

Justices on the U.S. Supreme Court have agreed to hear the appeal of an Alabama pain doctor convicted of running a pill mill, a case that could change how federal prosecutors handle opioid cases.  A federal judge in 2017 sentenced Dr. Xiulu Ruan of Mobile to 21 years in prison for several charges including drug distribution and money laundering related to operations at Physicians Pain Specialists of Alabama.  Ruan appealed his conviction last year to the 11th U.S. Circuit Court of Appeals but lost.  The U.S. Supreme Court agreed earlier this year to hear Ruan’s appeal.

The doctor claims his prescriptions of fentanyl and other opioids were supposed to help patients with severe pain.  In a brief, his lawyers said physicians should not risk arrest and prosecution for unconventional treatments when other approaches have failed.  In Ruan’s case, he prescribed fentanyl approved for patients with cancer pain to people suffering from back, neck and joint pain, according to the U.S. Department of Justice....

Ruan’s appeal has been consolidated with another case, Dr. Shakeel Kahn, who practiced in Arizona and Wyoming.  Both men were found guilty of violating the federal Controlled Substances Act and said juries were not allowed to consider a “good faith” defense, which is aimed at protecting doctors trying to help patients.  The supreme court could uphold his conviction or send his case back to trial.

Ruan’s criminal trial lasted seven weeks in 2017 and featured testimony from patients who supported the doctor and family members who said loved ones received dangerous doses of addictive painkillers.  Prosecutors acknowledged that many patients received good care at the two clinics, but said some prescriptions fell far outside the norm.  Ruan and another practitioner at the clinic, Dr. John Patrick Couch, were among the nation’s top prescribers of fentanyl painkillers.  Couch was also convicted and sentenced to 20 years in prison.  He has also appealed his case.

In its response, attorneys for the U.S. Department of Justice said Ruan prescribed much higher rates of opioids than other doctors and earned more than $4 million as a result. Ruan and his partner issued almost 300,000 prescriptions for controlled substances, they wrote. Prosecutors said Ruan had deep ties to drug companies that created fentanyl medications. After his conviction, they seized assets that included exotic cars, residential and commercial property....

In his brief, Ruan’s attorney wrote that Physicians Pain Specialists of Alabama did not operate as pill mills. The clinics only accepted patients with insurance, refused cash payment and used diagnostic tools to find the sources of patients’ pain.  Only patients with intractable pain received fentanyl, Ruan testified at his trial. “He also testified that the medication was a ‘lifesaver’ for patients who would otherwise ‘have to go to [the] ER’ during such an episode,” the brief said.

Pain patients have criticized crackdowns on pain clinics and doctors.  Compassion & Choices, an organization that advocates for dying patients, submitted a brief in support of Ruan. “Medical practitioners prescribing opioids to such patients in good faith are not drug pushers under the Act,” according to the Compassion & Choices brief.  “Practitioners thus should not have to suffer the specter of criminal liability simply for treating such patients at such a vulnerable, critical, and private time in their lives.”...

Arguments in Ruan’s case are scheduled for March 1, 2022.

The briefing in Ruan v. US, No. 20-1410, is available at this SCOTUSblog link, and the brief from the defense sets up the issue this way in its Introduction:

To ensure that licensed medical professionals do not risk criminal prosecution and felony conviction based on simple malpractice, nearly all courts, construing the CSA and the implementing regulations, require that the government prove that the physician lacked a good faith basis for her prescription.  See Pet. 4-5, 18-27.  But not the Eleventh Circuit. According to the court of appeals, a doctor may be convicted under the CSA if her prescription fell outside of professional norms — without regard to whether she believed in good faith that the prescription served a bona fide medical purpose.  That outlier position, if sustained, would result in the kind of “sweeping expansion of federal criminal jurisdiction” that this Court has repeatedly condemned. Kelly v. United States, 140 S. Ct. 1565, 1574 (2020) (quoting Cleveland v. United States, 531 U.S. 12, 24 (2000)); see also Bond v. United States, 572 U.S. 844, 862-865 (2014). It would also chill medical progress, disrupt the doctor-patient relationship, and criminalize prescriptions whenever a lay jury is persuaded that the physician exceeded the “usual” practice of medicine.

Though these cases are formally about the standards for criminal liability for these doctors, there are sentencing stories lurking here.  First, of course, are the high sentencing stakes for any doctors found guilty of illegal drug distribution.  Decades-long federal sentences are common — but not at all consistent as Prof Adam M. Gershowitz has detailed — and local press indicates federal prosecutors wanted sentences considerably longer than the two decades given to Drs. Ruan and Couch.  But why might such extreme prison terms be needed, given that, once these doctors lose their prescribing licenses, they are functionally unable to repeat their crimes and their risk of recidivism is very low at their age?  Simply put, some vision of retribution must be driving the severity of the sense, especially since deterrence of doctors is likely achieved by any criminal prosecutions and over-deterrence seems like a real risk here.

In the end, the fact that the sentencing stakes are so high likely helps explain why these cases got the Supreme Court's attention.  And the debate over the whether the law requires proving a lack of good faith would, in a sense, get the the heart of the retributivist question of just how blameworthy these doctors really are.  For all those reasons (and others), when oral argument takes place in a couple months, I will be interested to see if any Justices bring up any of the sentencing issues lurking beneath these cases. 

Prior related post:

December 27, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Friday, December 17, 2021

Sixth Circuit reversal of denial of compassionate release shows how appellate review can sometimes reduce sentencing disparities

A few months ago in this post I flagged a lengthy CNN article discussing disparities in who was receiving compassionate release sentencing reductions in federal courts.  That CNN article featured the case of Horacio Estrada-Elias, an ill 90-year-old inmate serving a life sentence for marijuana trafficking crime, who had his request for compassionate release denied by Judge Danny Reeves in July 2021.  I was pleased to learn this week about notable updates to this story, reported in this new CNN piece headlined "A 90-year-old was serving life for marijuana despite serious illness. Now he's going home."   Here are some of the details:

In a dramatic reversal, a 90-year-old, seriously ill federal inmate serving life in prison for a nonviolent marijuana trafficking crime will go free after a judge granted him compassionate release on Tuesday -- overturning his previous order denying release.  Horacio Estrada-Elias, who was the subject of a CNN investigative story in September, is set to be freed this week after more than a dozen years behind bars....

Estrada-Elias suffers from congestive heart failure, atrial fibrillation and chronic kidney disease, and also contracted the coronavirus while in prison, according to court affidavits filed by doctors.  His prison doctor predicted in April 2020 that he had "less than 18 months" to live, and his warden recommended release, noting his spotless disciplinary record and writing last year that "he has been diagnosed with an incurable, progressive illness in which he will not recover."

Federal Judge Danny Reeves denied Estrada-Elias' motion for compassionate release in July, arguing that a life sentence is "the only sentence that would be appropriate."  But last month, an appeals court ordered Reeves to reconsider.  Two judges on a three-judge panel of the 6th Circuit Court of Appeals wrote that Reeves had "abused (his) discretion" by ignoring the fact that Estrada-Elias is unlikely to reoffend and "overly emphasizing" his nonviolent crimes. One judge dissented.

On Tuesday, the day after the formal appeal mandate was transmitted to his court, Reeves issued a new opinion approving compassionate release.  "The defendant's medical condition constitutes an extraordinary and compelling reason for release... when considered in conjunction with the defendant's advanced age," Reeves wrote, reducing Estrada-Elias' sentence to time served....

Reeves has an especially tough record on compassionate release, rejecting the vast majority of more than 100 release motions that came before him since the beginning of the coronavirus pandemic, according to a CNN analysis of court records.  In his earlier opinion, he had argued that the large volume of marijuana that Estrada-Elias trafficked had shown "a flagrant disrespect for the law that can only be reflected in an equally severe sentence."

His reversal "seems to be rooted in common sense and human dignity as opposed to legal formalities," said Alison Guernsey, a University of Iowa law professor who has studied compassionate release cases and reviewed Reeves' opinion.  She said it is uncommon for inmates who are denied compassionate release to win on appeal.

Estrada-Elias was sentenced to life in April 2008 after pleading guilty to a conspiracy to traffic tens of thousands of pounds of marijuana into and around the United States. Reeves, who handled his case, was required to give him a life sentence because he had previous drug convictions.  But the mandatory minimum law that applied was taken off the books in 2018.  If Estrada-Elias hadn't been subject to the mandatory minimum, the guideline for his sentence range would have been about 12 to 16 years in prison, according to court documents.

Estrada-Elias' case is an example of the wide disparities across the country in compassionate release during the pandemic.  In 2020 and the first half of 2021, some federal courts granted more than 40 percent of compassionate release motions in their districts, while others granted less than 3 percent, according to data from the US Sentencing Commission -- even though judges in all of the districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases.

In Estrada-Elias' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions, the data shows. Guernsey, the law professor, said the vast disparity in grant rates between courts "really calls into question the equity of compassionate release." "It appears to depend not on the gravity of your medical condition or the type of extraordinary and compelling circumstances that will dictate whether you're released," she said, "but almost a fluke of geography."

As the title of this post is meant to highlight, I think appellate review can and should play a significant role in reducing extreme sentencing outcomes that seem like a "fluke of geography." Notably, Justice Breyer's opinion for the Supreme Court in the remedial section of Booker stated that appellate review for reasonableness "would tend to iron out sentencing differences," but harsh sentencing outcomes are almost never reversed as unreasonable.  The panel Sixth Circuit opinion in US v. Estrada-Elias, No. 21-5680 (6th Cir. Nov. 24, 2021) (available here), which is unpublished(!?!) and a split decision, is a real rarity that shows reasonableness review can function to improve equity.  The majority opinion in this case starts this way:

Horacio Raul Estrada-Elias, a ninety-year-old man suffering from a terminal illness, appeals the district court’s order denying his motion for compassionate release filed pursuant to 28 U.S.C. § 3582(c)(1)(A)(i).  Estrada-Elias has spent fifteen years in prison for conspiracy to distribute marijuana.  Because of his illness, Estrada-Elias is bedridden.  He has never been convicted of a violent crime and has not received a single disciplinary infraction in prison.  The warden of the prison in which Estrada-Elias is incarcerated agrees that Estrada-Elias should be released from custody.  Despite Estrada-Elias’s age, illness, incapacity, and lack of any violent convictions, the district court denied his compassionate-release motion, finding that life in prison is “the only sentence that would be appropriate and that would protect the public” from this ninety-year-old terminally ill grandfather. R. 210 (Dist. Ct. Order at 14) (Page ID #2214) (quotation omitted).  We hold that the district court abused its discretion in denying Estrada-Elias’s compassionate-release motion.

December 17, 2021 in Booker in the Circuits, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, December 13, 2021

Notable new report from For The People about early implementation of California’s Prosecutor-Initiated Resentencing law

I just learned about this notable new report from For The People under the title "Prosecutor-Initiated Resentencing: California’s Opportunity to Expand Justice and Repair Harm."  Here is part of the report's executive summary and key findings:

Until relatively recently, California was home to the largest prison system in the U.S. From 1975 to 2006, California’s prison population saw an 800% increase, from less than 20,000 people to 163,000, as the state built 22 of its 34 prison facilities.  Though California has enacted a series of reforms in the last decade, over 99,000 people remain incarcerated in the state’s prisons. Many of these people, disproportionately people of color, are serving excessively long sentences and could be released without posing a threat to public safety.

California’s Prosecutor-Initiated Resentencing (PIR) law (AB 2942), championed by For The People’s founder and passed in 2018, gives District Attorneys (DAs) a groundbreaking tool to directly and immediately redress the harm caused by mass incarceration and excessive sentences.  The law allows DAs to take a “second look” at past sentences that may no longer be in the interest of justice and ask the court to recall sentences and resentence people, resulting in their earlier release and reunification with family and community. 

This report looks at how specific policies led to mass incarceration in California, reviews the evidence in support of releasing people who no longer need to be incarcerated, examines the opportunity for PIR, and shares the real impacts of resentencing on people who have already been released. Finally, the report offers recommendations on implementation and opportunities for further reform.

This press release provides a partial accounting of "key report finding":

And this Washington Post opinion piece by Hillary Blout, a former prosecutor who founded For The People, makes the case for Prosecutor-Initiated Resentencing (PIR) under the headline "Thousands of incarcerated people deserve to come home. Here’s how prosecutors can help." Here are excerpts with links from the original:

Beyond California, For The People has supported the passage of three laws just like the original. Today, IllinoisOregon and Washington state have all passed laws giving prosecutors the ability to revisit old cases — and more states, including New YorkMinnesota and Massachusetts, are considering PIR bills.

As this movement spreads, many may wonder, “Is this safe?”  The myth goes that long sentences are crucial to increasing public safety.  But research has shown that the length of a sentence doesn’t actually have the effect of deterring more crime.  Research also shows that people age out of crime, and that recidivism rates decline with age and are the lowest among people who have served the longest sentences for serious crimes.

The PIR process includes a meticulous review of an incarcerated person’s history, rehabilitation and in-prison behavior, as well as robust reentry planning. It also considers mitigating factors from the person’s childhood and develops safeguards for the future.  This helps ensure that our communities will be protected and even benefit from the person’s return home.

Regular readers know I am a big fan of second-look sentencing mechanisms, and some may recall that many years ago I gave a talk arguing that prosecutors should be much more involved in reviewing past sentences, which got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  So I am extremely pleased to see this idea in actual practice in a growing number of jurisdictions. 

December 13, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, December 12, 2021

Accounting for the first 50 sentences imposed on January 6 rioters

This new CNN piece, headlined "After 50 rioters sentenced for January 6 insurrection, a debate rages over what justice looks like," reports on a new analysis of sentences for the high-profile crimes that kicked off 2021.  I recommend the lengthy piece in full, and here are parts of how it gets started:

Of the 50-plus defendants who have been sentenced for their role in the January 6 attack on the US Capitol, fewer than half were sent to jail for their crimes. Most received an assortment of lesser penalties, including brief terms of house arrest, a couple years of probation, four-figure fines or court-ordered community service, according to a CNN analysis.

The milestone of 50 sentencings was hit on Friday, a busy day in court, with six hearings on the schedule. Four defendants got probation Friday, including a pair of veterans from Wisconsin, while one man who stole a beer from House Speaker Nancy Pelosi's office got 20 days in jail.

As federal prosecutors have brought cases against nearly 700 rioters, a heated debate has emerged over what justice should look like for such an unprecedented assault on democracy. This debate has raged on social media and in the halls of Congress. It has also played out among the two dozen judges handling the cases at the federal courthouse in Washington, DC.

After 50 sentencings, a split has developed on the bench: One group of judges has handed down stiffer punishments to rioters, including time behind bars. While a more skeptical group of judges have rebuffed the Justice Department and instead imposed fines and probation, which means the rioters will avoid jail but stay under government supervision for years to come.

This dynamic won't last forever -- this initial wave of guilty pleas and sentencings will eventually be followed up by dozens of more serious felony cases with longer prison terms. But for now, the dizzying array of outcomes has caused some headaches. Judges are questioning the department's approach to January 6, and politicians from both sides have fanned the flames....

These wings of the court don't fall along political lines. There are GOP-appointed skeptics, and some Democratic appointees handing down tough punishments. But the dynamic is nuanced. This has also forced partisan players on both sides to contort their ideological views to fit the moment.

Democratic lawmakers and activists are calling for more incarceration and want judges to throw the book at rioters, while many Republican officials and right-wing influencers have become newfound supporters of improving jail conditions for what they call "political prisoners."

Some of many prior related posts:

UPDATE: I just notice this recent AP article discussing some of the sentencings for some of the January 6 crimes under the headline "Capitol rioters’ social media posts influencing sentencings." Here is how the extended piece gets started:

For many rioters who stormed the U.S. Capitol on Jan. 6, self-incriminating messages, photos and videos that they broadcast on social media before, during and after the insurrection are influencing even their criminal sentences.

Earlier this month, U.S. District Judge Amy Jackson read aloud some of Russell Peterson’s posts about the riot before she sentenced the Pennsylvania man to 30 days imprisonment. “Overall I had fun lol,” Peterson posted on Facebook.  The judge told Peterson that his posts made it “extraordinarily difficult” for her to show him leniency.

“The ’lol’ particularly stuck in my craw because, as I hope you’ve come to understand, nothing about January 6th was funny,” Jackson added.  “No one locked in a room, cowering under a table for hours, was laughing.”

Among the biggest takeaways so far from the Justice Department’s prosecution of the insurrection is how large a role social media has played, with much of the most damning evidence coming from rioters’ own words and videos.

December 12, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (12)

Saturday, December 11, 2021

New Harvard Law Review article details "The Incoherence of Prison Law"

The new issue of the Harvard Law Review has this notable new article authored by Justin Driver and Emma Kaufman and titled "The Incoherence of Prison Law."  Here is its abstract:

In recent years, legal scholars have advanced powerful critiques of mass incarceration.  Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality.  Scholars have said much less about the law that governs penal institutions.  Yet prisons are filled with law, and prison doctrine is in a state of disarray.

This Article centers prison law in debates about the failures of American criminal justice.  Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure.  We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions.  To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation.  We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.

Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons.  This Article explains how outdated tropes have narrowed prisoners’ rights and promoted the country’s dependence on penal institutions. It links prison myths to the field’s central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment.  And it argues that courts must abandon that doctrine — and attend to the realities of prison — to develop a more coherent theory of prisoners’ constitutional rights.

December 11, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Friday, December 03, 2021

"Moral Panic and the War on Drugs"

The title of this post is the title of this new article now available at SSRN authored by Phil Lord.  Here is its abstract:

This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, which rejects the assumption that collective, institutionalized behavior is generally rational, can help us understand key aspects of why we continue to marginalize disadvantaged individuals.  If the War on Drugs is a war and wars are won or lost, there is no question we lost.  Whatever drug-related evil that war sought to eradicate, whether drug consumption, trafficking, or addiction, the data clearly shows that “drugs won.”

Along the way, we nonetheless persisted — and largely still do. We filled prisons, lost lives, and shattered hopes and dreams.  Those we hurt the most were already marginalized.  To state that we lost is unhelpful and insufficient.  Of course, we did.  And we can draw obvious lessons that medicine and psychology work better than carceral institutions and that no one benefits from marginalizing already marginalized and often sick individuals. 

If the War on Drugs never worked, more salient questions are to be asked about why we fought it. This Article posits that the War on Drugs is not about drugs, crime, or addiction: it is about us.  It is about why we cede to fear, anxiety, and irrationality. It is about why we stigmatize and hurt the most vulnerable. Like other irrational and counterproductive policies, the War on Drugs is not an anomaly.  It bears close resemblance to other wars we fought (and fight) against the disempowered: witches, gays, Muslims, and others.

December 3, 2021 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (25)

Friday, November 26, 2021

"A New Generation of Prosecutors Is Leading the Charge to Reimagine Public Safety"

The title of this post is the title of this notable recent report from Data for Progress authored by Prerna Jagadeesh, Isa Alomran, Lew Blank and Gustavo Sanchez. Here is part of its introductions:

Local prosecutors possess unparalleled power within criminal legal systems across the country.  Also commonly referred to as District Attorneys, State’s Attorneys, Commonwealth Attorneys and County Attorneys, local prosecutors are responsible for the vast majority of criminal cases brought in the United States.  They have nearly unlimited discretion in deciding who to charge, the type of crimes to charge, and the severity of punishment at sentencing.  They are also primarily responsible for determining who stays in jail and who can be released back to their communities while awaiting trial, and they wield unmatched influence in determining the kind of criminal laws and penalties enacted by state legislatures.

Over the past five decades, prosecutors have deployed their power to charge and sentence even more people, relying heavily on incarceration or correctional supervision to control and punish people convicted of crimes.  While public safety was the purported justification for this approach, a growing body of research is finding that incarceration is ineffective at deterring crime and fails to prevent violent crime in the long-term.  Meanwhile, it has generated devastating consequences for many communities — particularly communities of color — in both direct and indirect ways. Mass incarceration has destabilized communities, worsened outcomes for children with incarcerated parents, increased morbidity and mortality, perpetuated generational wealth gaps, exacerbated mental illness among those incarcerated, and increased homelessness, alongside many other collateral consequences. ...

Notably, the prosecute-and-convict approach has also neglected the interests of those who have experienced and survived crime.  According to a groundbreaking survey of crime survivors conducted by the Alliance for Safety and Justice, the vast majority of victims –– who are more likely to be low-income, young, people of color –– prefer solutions that focus on alternatives to incarceration, such as job creation, crime prevention, rehabilitation, drug use and mental health treatment, among others.  In particular, seven out of ten would rather see prosecutors invest in solving neighborhood problems through rehabilitation, not prosecution and incarceration.

As a result, a growing number of prosecutors have begun to reimagine public safety in ways that reduce the use of prosecution and incarceration, create more effective and less destructive accountability strategies, end racial disparities, and address the drivers of criminal behavior as well as the needs of those most impacted by crime....

In the summer of 2021, Data for Progress surveyed 19 of these reform-minded prosecutors to identify their approaches to community safety, key policy changes, goals for the future, and obstacles impeding their efforts to achieve transformational change.  Their responses are detailed more fully below.

November 26, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, November 04, 2021

Checking in with Oregon's drug decriminalization effort one year in

Stateline has this effective piece, headlined "Oregon’s Drug Decriminalization May Spread, Despite Unclear Results," providing an update of sorts on Oregon's experience one year after a ballot initiative enacted statewide drug decriminalization.  I recommend the full piece, and here are excerpts:

Progressive lawmakers and civil rights groups want more states to follow Oregon’s recent example and drop criminal penalties for carrying small amounts of heroin, cocaine or other drugs, and to spend more money on addiction recovery services.  They say substance use disorder should be treated as a disease, rather than as a crime.

Democratic lawmakers in Maine, Massachusetts, Rhode Island and Vermont all proposed decriminalization bills this year.  Advocacy groups hope to get a decriminalization measure on the ballot in Washington in 2022 and in California in 2024, said Matt Sutton, director of public relations for the Drug Policy Alliance, a New York-based nonprofit.  The Drug Policy Alliance helped fund the ballot initiative that resulted in Oregon’s new law, which took effect in February.

But Oregon’s experience shows that it’s easier to eliminate criminal penalties than to ramp up behavioral health services and get more people to use them.  In fact, critics of decriminalization say such policies could decrease access to treatment, because fewer low-level offenders will be pushed into court-ordered programs....

The law will use marijuana tax revenue — plus any criminal justice money saved through decriminalization — to fund organizations that help people seek and maintain sobriety. Those services could include peer support groups and transitional housing programs. Such organizations will get about $300 million over the next two years [which is estimated to be] about five times the amount Oregon is currently spending on services that aren’t provided through Medicaid, the public health insurance program for people who have low incomes or disabilities. About $30 million already has been disbursed....

Drug arrests and convictions have plummeted in Oregon since February.  The ballot measure made possessing small amounts of drugs — such as less than a gram of heroin, or less than two grams of cocaine — a civil citation punishable by a $100 fine rather than a crime.  It also downgraded felony charges to misdemeanors for possessing slightly larger amounts.

The measure established a hotline that people whom police ticket for possession can call to undergo a health assessment.  If they complete the assessment, they can get their citations waived, even without further treatment or other services.  The law also requires the state to establish addiction recovery centers to connect people who use drugs with treatment or other assistance, such as housing or overdose prevention education.

Before decriminalization, in 2019, Oregon law enforcement officers made more than 6,700 arrests and courts issued more than 4,000 convictions for drug possession in cases where possession was the most serious potential charge, according to the Oregon Criminal Justice Commission....  Between February and August this year, law enforcement made 1,800 arrests for such possession crimes and courts issued 364 convictions.  Defendants most likely were arrested for carrying large amounts of drugs or for drug dealing offenses, said Ken Sanchagrin, executive director of the commission. 

Decriminalization doesn’t appear to be leading to a rise in drug-related crime, such as property crime.  Property crimes in the state actually decreased this year, according to data provided by the criminal justice commission and the judicial department.

It’s less clear whether decriminalization has led more people to seek help for substance use disorders.  Defendants failed to show up in court to make their case against about half of 1,300 citations issued through September for possession of small amounts of drugs, according to the Oregon Judicial Department.  In only seven cases did defendants submit a health assessment to get their fines waived.  To critics of the new law, the seldom-used hotline proves that decriminalization isn’t working....

Policymakers nationwide likely will be watching Oregon for policy insights, said Beau Kilmer, director of the RAND Drug Policy Research Center at the RAND Corporation, a California-based research group.  But the Oregon law is so new — and is being implemented at such an unusual time, during a global pandemic — that it’s hard to tell whether it’s working as intended, he said.  “I suspect voters in other states will be considering this before we have hard evidence on it.”

November 4, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Should veteran status justify reducing or increasing the sentences of January 6 rioters?

The question in the title of this post is prompted by this lengthy new AP piece headlined "Feds seek tougher sentences for veterans who stormed Capitol."  The piece merits a full read, and here are excerpts:

During his 27 years in the U.S. Army, Leonard Gruppo joined the Special Forces, served in four war zones and led a team of combat medics in Iraq before retiring in 2013 as a lieutenant colonel.

During his six minutes inside the U.S. Capitol on Jan. 6, Gruppo joined a slew of other military veterans as a mob of pro-Trump rioters carried out an unparalleled assault on the bastion of American democracy.  He’s among dozens of veterans and active-service members charged in connection with the insurrection.

Now, cases like his are presenting a thorny question for federal judges to consider when they sentence veterans who stormed the Capitol: Do they deserve leniency because they served their country or tougher punishment because they swore an oath to defend it?

The Justice Department has adopted the latter position. In at least five cases so far, prosecutors have cited a rioter’s military service as a factor weighing in favor of a jail sentence or house arrest.  Prosecutors have repeatedly maintained that veterans’ service, while commendable, made their actions on Jan. 6 more egregious....

Prosecutors’ arguments about rioters’ military service didn’t sway one of the first judges to hear them — at Gruppo’s sentencing hearing last Friday.  “I don’t view his military service that way. I just can’t bring myself to do that,” Chief U.S. District Judge Beryl Howell said before sentencing Gruppo to two years of probation, including 90 days of house arrest....

In most criminal cases, judges typically view a defendant’s military service as a mitigating factor that favors leniency, said James Markham, a professor of public law and government at the University of North Carolina at Chapel Hill.  But he recognizes how the Justice Department could conclude that rioters with military experience should be held to a higher standard than those without it.  “It’s obviously not related to their military service directly, but it’s also not entirely conceptually unrelated that somebody who is a veteran or had military service could be viewed as having a more refined understanding of the importance of civilian control and electoral stability,” said Markham, a lawyer and Air Force veteran.

More than 650 people have been charged in the Jan. 6 attack. Some of the rioters facing the most serious charges, including members of far-right extremist groups, have military backgrounds.  A handful of riot defendants were on active duty, including an Army reservist who wore a Hitler mustache to his job at at a Navy base.

More than 100 riot defendants have pleaded guilty, mostly to misdemeanors punishable by a maximum of six months of incarceration. Two dozen had been sentenced as of Friday.  At least three of the sentenced defendants are veterans, according to an Associated Press review of court records.

In September, U.S. District Judge James Boasberg sentenced Air Force veteran Derek Jancart to 45 days in jail for joining the riot.  Prosecutors had sought a four-month jail sentence for Jancart, an Ohio steelworker....  Another Air Force veteran, Thomas Vinson, was sentenced on Oct. 22 to five years of probation.  Prosecutors had recommended three months of house arrest for Vinson, a Kentucky resident who served in the Air Force from 1984 through 1988....

At least two other rioters who served in the military are scheduled to be sentenced in the coming days.  Prosecutors have recommended two months in jail for Boyd Camper, who served in the U.S. Marines from 1987 to 1990...  Prosecutors are seeking two months of house arrest for Air Force veteran Jonathan Ace Sanders Sr., who is scheduled to be sentenced on Thursday. 

Some of many prior related posts:

November 4, 2021 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Sunday, October 31, 2021

"Bloody Lucre: Carceral Labor and Prison Profit"

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

The pursuit of profit is inextricably intertwined with America’s system of carceral labor and criminal punishment.  Along with the institution of slavery, the harnessing of involuntary carceral labor yielded enormous proceeds through transformation of human toil into financial gain.  Profit incentives have exerted a profound influence on the shape of American carceral labor.  From 16th-century British convict transportation to 21st-century private corrections companies, profitable returns from involuntary carceral servitude have been an important feature of criminal punishment.

This Article traces the coruscating power of the private profit motive within the criminal justice system, one of the first to chart the ways this focus on revenues has shaped the forced toil of those under correctional control.  By thoroughly evaluating our carceral history, and dissecting the financial currents that have shaped the many forms of involuntary inmate servitude, we will be better able to disentangle how money has influenced and warped our system into one of mass incarceration.  Moreover, a full understanding of our carceral past could help us begin to rechart the course of modern criminal justice, eliminating this kind of involuntary servitude in our system.

October 31, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, October 18, 2021

Notable new essays in Brennan Center's "Punitive Excess" series focused on responding to violent crime and mandatory minimums

highlighted here back in April the terrific essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  The latest pair of piece ought to be of particular interest to sentencing fans:

Both of these pieces are must reads, and the piece on mandatory minimums has links to research and other materials that might be useful for those litigating against such sentences or seeking reductions therefrom.  Here is a segment (with links) from that piece:

[P]rosecutors’ power over mandatory minimums in turn creates racial disparities, obliterating any pretense of an unbiased system.  A recent study finds that prosecutors’ mandatory minimum charges resulted in Black individuals spending more time in prison than whites for the exact same crimes.  In fact, prosecutors bring mandatory minimums 65 percent more often against Black defendants, all else remaining equal. Another study similarly finds that some federal prosecutors charge Black and Latino individuals more often than white individuals with possession or sale of a quantity of drugs just sufficient to trigger a mandatory minimum; the disparity is highest “in states with higher levels of racial animus.”

Finally, mandatory minimums do not promote community safety.  Rather, any prison time at all increases the risk of future crime because “incarceration is inherently criminogenic”; mandatory minimums only exacerbate this situation.  Florida experienced a 50 percent spike in crime after enacting mandatory minimums.  Long sentences also make it more difficult for people to reintegrate into society.  And our overreliance on prisons makes us less safe by diverting resources from other critical public safety needs.  In contrast, studies show that shorter sentences in drug cases neither diminish public safety nor increase drug abuse.

The dominant paradigm is vulnerable, and instituting a new paradigm is both possible and crucial. President Biden and his attorney general have denounced mandatory minimums, as did former Attorney General Eric Holder.  Even though federal prosecutors — all of whom are subject to supervision by the Department of Justice — have long been the primary proponents of mandatory minimums, Attorney General Merrick Garland affirmed this position during his confirmation hearings: “We should . . . , as President Biden has suggested, seek the elimination of mandatory minimum[s].”

However, despite Garland’s testimony, his Department of Justice has given no sign that it will stop pursuing mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors: “Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum” should be charged.  To make matters worse, Garland chose not to reinstate a 2013 Holder policy that both directed prosecutors to decline to charge a mandatory minimum in “low-level, non-violent drug offenses” and explicitly acknowledged that such sentences “do not promote public safety, deterrence, and rehabilitation.”  After twenty years defending people charged with federal crimes, I’ve learned that prosecutors are rarely agents of change.  This is unfortunate because Garland has real power to reduce racialized mass incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest.

Prior related posts:

October 18, 2021 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

"Towards A New Framework for Achieving Decarceration: A Review of the Research on Social Investments"

The title of this post is the title of this new paper from the Square One Project at Columbia University authored by Laura Hawks, Evangeline Lopoo, Lisa Puglisi and Emily Wang. Here is a portion of the long paper's introduction:

[T]his paper aims to examine the science behind sustainable decarceration — and the extent to which there is scientific support for how community organizations and societal entities can lead decarceration efforts in concert with continued legal reforms to descale facility-based and community corrections populations.  To be sure, academics of disparate ideology have previously studied sections of this road map.  Some support the need for improving correctional programming, including a risk-needs-responsivity model of correctional programming, which aims to optimize resources within correctional systems to rehabilitate those incarcerated.  Others, including Professors Angela Davis and Ruth Wilson Gilmore, conceptually reject reforms within the correctional sector and propose a framework for dismantling the prison industrial complex that emphasizes investments in alternate sectors, prioritizing economic and political liberation of the historically oppressed (Davis 2005; Wilson Gilmore 2007).  With this paper, we intend to add to this latter school of thought by systematically cataloguing community investments detached from the criminal legal system which promote decarceration.  We then highlight what academics have not yet sought to study.  We undertake this study with the belief that decarceration is as worthy of careful study and investment as the prevention of cardiovascular disease and warrants experimentally designed studies at the individual and community level which tests the short and long-term benefits of intervention, dose of intervention, and the costs and benefits to society.

To our knowledge, no review has identified and synthesized the experimental evidence to determine which community investment efforts effectively support ongoing decarceration efforts and which do not.  To fill this gap, we have conducted a scoping review to identify interdisciplinary interventions, detached from the correctional control system, in the domains of education, housing, healthcare, employment, and social support programs that help reduce incarceration by reducing likelihood of becoming involved in the criminal legal system (referred to in this paper as incident incarceration) or repeat involvement in the criminal legal system (referred to in this paper as recidivism).  We centered our review on the following research question:

Which interventions (including social policies) grounded in community investment have been shown to achieve decarceration as measured by reduced incident incarceration or reduced recidivism?

October 18, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, October 17, 2021

"Doing Justice in Sentencing"

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

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit.  The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance.  To people sentenced, their families, and others who love them it is devastatingly important.  Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

October 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Monday, October 11, 2021

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

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

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

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

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

Wednesday, September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

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

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

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

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

Sunday, September 26, 2021

"Custodial Sanctions and Reoffending: A Meta-Analytic Review"

The title of this post is the title of this forthcoming publication in Crime & Justice authored by Damon Petrich, Travis Pratt, Cheryl Lero Jonson, and Francis Cullen. Here is its abstract:

Beginning in the 1970s, the United States began an experiment in mass imprisonment.  Supporters argued that harsh punishments such as imprisonment reduce crime by deterring inmates from reoffending.  Skeptics argued that imprisonment may have a criminogenic effect.  The skeptics were right.  Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null.  Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation.  This finding is robust regardless of variations in methodological rigor, types of sanctions examined, and sociodemographic characteristics of samples.  All sophisticated assessments of the research have independently reached the same conclusion.  The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.”  Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism.  Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders.

September 26, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, September 16, 2021

"Punishment and the Body"

The title of this post is the title of this notable new article authored by Christopher Belshaw that I just saw in the new Journal of Controversial Ideas.  Here is its abstract:

Suppose we accept that punishment can be legitimate.  What form should it take?  Many of us believe that it can be acceptable to fine or imprison someone, but that capital punishment, along with corporal punishment in its various manifestations, is wholly unacceptable.  I suggest that it is hard to account for or justify this distinction.  But granting that resistance to these latter forms is unlikely to be dislodged, and granting too that imprisonment in particular is hardly problem-free, it is worth considering whether there might be alternatives.  And I argue here that we should consider enforced coma as a procedure having many advantages over the more familiar methods of delivering a penalty.  Of course, there are disadvantages also.  The aim isn’t to offer a detailed and practical solution to the problem of crime, but to explore some of the presumptions and principles involved in our thinking about punishment.

September 16, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 11, 2021

"Expanding Compassion Beyond the COVID-19 Pandemic"

The title of this post is the title of this paper now on SSRN authored by Katie Tinto and Jenny Roberts. Here is its abstract:

Compassionate relief matters.  It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children.  It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences.  It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.

September 11, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, August 31, 2021

Notable response to notable attack on conservatives role in modern criminal justice reform

Lars Trautman and Brett Tolman have this interesting new Washington Examiner commentary headlined, "No, criminal justice reform isn’t causing the current crime wave." Here are excerpts (with links from the original):

Conservative criminal justice reformers have faced occasional skepticism over our tried-and-true criminal justice solutions, but never something quite so outlandish as a recent suggestion, by an avowed conservative, no less, that conservative reformers somehow bear blame for rising violent crime in liberal bastions such as New York City and Portland.

Sean Kennedy, in his recent Washington Examiner article , attacks our organization, Right on Crime, using just such an argument.  Kennedy actually acknowledges our record of helping Texas and other conservative states simultaneously reduce their crime rates, prison populations, and criminal justice spending.  But he then claims, without evidence and employing a classic logical fallacy , that this activity then caused subsequent increases in crime in Texas.  Note that he makes this claim even though crime spiked at exactly the same time he refers to in many states where none of our reforms were enacted....

But those of us who have served in law enforcement, as prosecutors or in corrections, have learned that if you invest properly in police, evidence-based programming, and prison alternatives, you can consequently achieve reductions in crime, recidivism, and ultimately prison construction costs.  Further, the evidence is clear that it is the certainty and not the severity of punishment that deters potential criminals.  A few more years on a potential sentence doesn’t change many minds about crime — it’s the long odds of getting away with it entirely.

Too often, people do get away with murder and a host of other crimes.  Homicide clearance rates nationally hover around 50%. Whether a killer meets justice is a coin flip . If you’re worried about public safety, it’s more productive to spend your time improving clearance rates, not bemoaning the elimination of ineffective mandatory minimums for nonviolent offenses.

This is why we are so adamant about reducing our overreliance on prison beds and other costly, unproductive interventions so that we can redirect this money and focus toward law enforcement and other strategies that actively improve our crime prevention and investigative capabilities.  Practically speaking, this means more funding for police departments, especially homicide and other specialized units focusing on serious and violent crime — a commonsense solution backed by research.  It also means helping shift to others, such as social workers and truant officers, at least a few of the dozen different jobs we currently expect law enforcement to complete, so that police can concentrate on actual police work.

August 31, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Monday, August 23, 2021

Deep thoughts about "criminal legal education" as we head back to school

I am very excited to be back to school this week with the extra pleasure and honor of teaching a (small section) of 1L Criminal Law (though I am frustrated that this semester will now be the fourth beset with COVID challenges).  My very first class ― way back in Fall 1997! ― was a small section of Criminal Law to 1Ls, and I surely want to believe I have done more good than harm in well over a dozen iterations of this great class.  However, this notable new Inquest essay by Shaun Ossei-Owusu should perhaps lead every criminal law professor to give some thought to whether and how we are just "Making Penal Bureaucrats."  This essay builds on some points he made in a recent law review article, "Criminal Legal Education," and here are excerpts:

Many lawyers play a central role in creating and sustaining mass incarceration; and many will leave law school with the ability to do the opposite. The high-profile death [of George Floyd] confirmed the brutality, inequality, and, for some, irredeemability of the very things many professors teach.  And criminal legal educators, some believe, need to read the room and offer instruction that better conveys the unjust realities of our legal system.  Alice Ristroph, a professor at Brooklyn Law School, may have offered the most forceful of these critiques, arguing that the detachment from reality and supposed race-neutrality of criminal-law teaching produces “pro-carceral” lawyers who help sustain mass incarceration.

My own work, published and forthcoming, moves in a similar direction, but also examines the race, poverty, and gender oversights in criminal legal education more broadly.  Some fellow academics will take issue with the idea that law professors have a hand in mass incarceration, to say nothing of other social ills, while others will applaud and nod in approval.  Whatever side they’re on, the undeniable reality is this: Law professors have trained and will continue to educate public defenders, prosecutors, and judges.  The legal education of these penal bureaucrats matters in the larger conversation around criminal justice policy and its deep, structural failings. And so the obstacles to changing legal education are really obstacles for the effort to tear down the legal edifice that made Floyd’s murder possible in the first place. As history shows, those challenges are not insignificant. To overcome them, we need a clear-eyed sense of what the precise obstacles are standing in the way to a more justice-oriented legal education.

Simply put, we can’t afford to ignore curricular reform in this moment, as navel-gazing as such a project may seem to those outside of law school.  I don’t profess to have all the answers.  Instead, I hope to sketch some issues we must confront if legal educators hope to meaningfully leverage this new energy in favor of effective curricular reform.  There have been various proposals and calls for action, but it seems necessary to raise questions that are sometimes muted or skipped over in the rush to reform a curriculum that has real shortcomings. The answers to these questions might lead us closer to capturing what legal historian Bob Gordon has described as “the motors of curricular change.”...

 With the exception of untenured faculty, law professors enjoy considerable latitude in their classrooms. A dean or administration has some carrots and sticks at their disposal, but few are game changers. These professors can be fussy and persnickety about teaching, and rightfully so.  Teaching comprises a substantive portion of professorial duties (the other two standard activities being research and service). As one professor observed in 1968, “I have seen law teachers, who have no peers in nitpickery, verge on purple apoplexy in debate over the curriculum. The whole academic business is fraught with vested interests, gored oxen, ground axes, pet peeves, visionary schemes, and intractable inertia.”

All this power-wielding exists in a context where there are competing ideas about the role of the professor.  A mere transmitter of what the law is?  A camouflaged activist who blends instruction with the inculcation of a particular set of values that makes students want to improve the criminal justice system, independent of how many people actually want to go in that line of work?  An instructor whose teaching discourages students from certain kinds of work as undesirable — where progressive prosecution and indigent defense alike are “system-reifying”?

In view of this morass of challenges, it is no wonder that urging legal instructors to talk more about racism, poverty, sexism, homophobia, and transphobia in their classrooms — even if they engage those topics already — is no stroll in the park.  Looking to the broader aim of criminal legal reform, explaining why the rest of the public should care or enter this discussion at all is tricky.  Law schools can be cordoned off from their local communities.  The key here is to recognize that this is a site of struggle where change-oriented people and organizations can develop allyships with like-minded students and faculty to help craft solutions to the multilayered problems of our penal system.

For students, I hope that identifying these challenges will clarify two things.  The first, which is something that I’ve consistently argued, is that legal education is unlikely to provide students with the kind of social justice-oriented training that some are demanding.  Self-led learning and organizing by student groups within and across law schools may have to be the second-best option. But this is not simply nudging students toward neoliberal self-help.  My second hope, instead, is for students to better understand these constraints — and in the process, to get a better sense of how to organize for and demand desired changes from their institutions.  Issues such as faculty composition, faculty governance, the professional pathways of graduates, and ideological variation within student bodies are some of the many issues that shape what they learn in a criminal legal education course.  But these factors may not be readily apparent to students who don’t have a sense of the “backstage” of legal education.  The short-term nature of legal education — three years, or two if you do not count the overbearing first year or a third year some students often check out of — demands cooperation with change-minded people outside of law schools and intentional strategies that withstand law school’s running out the clock on curricular change and hoping that the next cohort of students does not notice.

My fellow legal educators are likely to understand where I’m coming from. For those who care about this issue, my desires are also twofold.  First, I hope that these reflections will spur them to honestly assess where they might fit on a rough spectrum of this kind of curricular reform: active implementer, passive supporter, or outright adversary.  I have my own beliefs on the desirability of revamping criminal legal education; and yet I think there are principled justifications for each of these dispositions.  Let us just be intellectually honest about where we stand.  Second, I hope that we can all see that we are part of a vocation that has long professed ideas about intellectual curiosity, social justice, and equality under the law.  Nevertheless, our field has not been fully responsive to longstanding appeals to include legally relevant conversations about social inequality in our teaching.  Our response to this moment will partially dictate whether our profession can march closer toward social justice-oriented legal education — one that could mold not only the next generation of penal bureaucrats but also the change agents who will engage them and help to build new decarceral futures.  Or whether that curricular goal will simply result in yet another round of panels, symposia, and hashtags that merely scratch the surface.

August 23, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Thursday, August 19, 2021

"Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse"

The title of this post is the title of this new article on SSRN authored by Paul Robinson and Lindsay Holcomb. Here is its abstract:

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ.  There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome.  On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense.  In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account.  Should our assessment of an offender’s criminal liability be adjusted for their cultural background?  Their religious beliefs?  Their past life experiences?  The pedophilic tendencies they have always had but usually suppressed?

The question of how much to individualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to a justification, duress, and involuntary intoxication.  Indeed, it turns out that the problem of individualizing factors is present, if often obscured, in all criminal law doctrines of culpability, mitigation, and excuse.

The Article reviews the appeal of criminal law adhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized standard in some cases involving some doctrines.  But this leaves the jurisdiction’s criminal law in an awkward and unstable state.  Without a guiding principle for determining which individualizing factors are to be taken into account under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases.  The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises.

August 19, 2021 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, August 17, 2021

“The Case for a Presidential Task Force on 21st Century Prosecution"

The title of this post is the title of this notable new white paper produced by Fair and Just Prosecution.  Here is its executive summary:

THE NEED FOR A PRESIDENTIAL TASK FORCE ON 21ST CENTURY PROSECUTION

The United States currently incarcerates its residents at the highest rate of any democratic country in the world.  This system of mass incarceration disproportionately impacts Black and brown Americans, disrupts communities, and bloats budgets, all while impeding the mission of public safety it purports to promote.  Prosecutors wield a vast amount of discretion and authority within the criminal legal system — and therefore share responsibility for those systemic failings — yet they also hold the power to bring about systemic transformation.  The Biden-Harris administration has a vital role to play in catalyzing innovation and helping prosecutors nationwide chart a path to greater justice and equity for their communities.  A new generation of local elected prosecutors are modeling that potential and are reimagining the role of prosecutors. We propose a Presidential Task Force on 21st Century Prosecution to build on — and help perpetuate — that movement.

PROPOSED FOCUS

Seventeen pillars would serve as the basis for a series of hearings and focus the Task Force’s work:

  • Understanding the historical legacy of the prosecutor
  • Promoting deflection, diversion, and shrinking the system
  • Advancing racial and ethnic justice
  • Addressing the poverty penalty and bail reform
  • Promoting harm reduction, saving lives, and drug policy reform
  • Misdemeanor justice
  • Better serving crime survivors
  • Understanding, preventing, and addressing violence
  • Juvenile and young adult justice
  • Preventing officer-involved shootings and enhancing police accountability
  • Improving conditions of confinement
  • Implementing post-conviction justice, fair sentencing, and sentencing review
  • Accounting for collateral consequences and promoting expungement
  • Addressing mass supervision and improving reentry
  • Envisioning success, metrics, and culture change
  • Ensuring ethics, accountability, and transparency
  • Propelling change and investing in transformation....

GOALS AND OUTCOMES

We recommend that the Task Force produce:
  • A final report that identifies successful prosecutorial reforms and innovation, lays out key challenges to implementing change, details promising practices, and offers specific and tangible goals paired with policy and program recommendations that could include improving the safety and well-being of our communities, dramatically reducing jail and prison populations, ending racial disparities, and enhancing transparency and accountability;
  • A strategic roadmap to incentivize and fund change and innovation, including by encouraging and enabling specific federal laws, policies, resources, and grants to help support and propel systemic transformation; and
  • A concrete implementation plan, including the creation of an implementation oversight group and ongoing technical assistance from key federal government bodies and leaders.

August 17, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

"Can Restorative Justice Conferencing Reduce Recidivism? Evidence From the Make-it-Right Program"

The title of this post is the title of this new NEBR working paper authored by Yotam Shem-Tov, Steven Raphael and Alissa Skog. Here is its abstract:

This paper studies the effect of a restorative justice intervention targeted at youth ages 13 to 17 facing felony charges of medium severity (e.g., burglary, assault).  Eligible youths were randomly assigned to participate in the Make-it-Right (MIR) restorative justice program or to a control group in which they faced criminal prosecution.  We estimate the effects of MIR on the likelihood that a youth will be rearrested in the four years following randomization.  Assignment to MIR reduces the likelihood of a rearrest within six months by 19 percentage points, a 44 percent reduction relative to the control group.  Moreover, the reduction in recidivism persists even four years after randomization.  Thus, our estimates show that juvenile restorative justice conferencing can reduce recidivism among youth charged with relatively serious offenses and can be an effective alternative to traditional criminal justice practices.

August 17, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, August 15, 2021

"Bridging the Gap: A Practitioner’s Guide to Harm Reduction in Drug Courts"

The title of this post is the title of this notable new report from the Center for Court Innovation and authored by Alejandra Garcia and David Lucas. Here is the first part of the report's introduction:

Drug law reforms across the country are trending toward decriminalization and public healthinformed responses, and away from the carceral strategies of the past. These historic changes are likely to impact drug court operations significantly. Fewer drug-related arrests means fewer referrals to drug courts, and a lighter hand in sentencing will reduce the legal leverage that has long been used to incentivize participation. The overdose crisis, COVID-19, and renewed demands for racial equity and legal system transformation have also given rise to a more expansive discourse around drug use, mental health, and community safety. Alongside this shift, harm reduction initiatives are being supported at the local, state and federal level on a scale never seen before.

At their inception, drug courts represented a new way of thinking about the intersection of addiction and crime in society. Offering a treatment alternative to jail or prison, the model aimed to address the harms — and ineffectiveness — of incarcerating drug users. Today, however, criminal legal system reformers are calling into question some of the model’s most defining features, which remain largely coercive and punitive. Moving forward, drug courts can expect to face increasing pressure from public health experts and harm reduction advocates to abandon the abstinence-only model, eliminate jail sanctions, and overhaul their drug testing protocols.

This document is an attempt to provide a fresh perspective on several foundational drug court practices and the inherent challenges of this work. It argues that the most effective way for drug courts to evolve — and do less harm — involves integrating the practices and principles of harm reduction. Drug courts and the harm reduction movement will continue to co-exist for some time and face similar system barriers while serving many of the same people. As such, this document represents a conversation that is new and necessary — one that aims to bridge the gap between these contrasting paradigms for the benefit of those who participate in drug courts.

August 15, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, August 13, 2021

"Restorative Retributivism"

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

The current criminal justice moment is ripe for discussion of first principles.  What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration.  One theory recently put forth — reconstructivism — purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system.  It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts.  In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good.  Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories.  It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted.

This Article critiques reconstructivism’s core claims and presents an alternative theory of punishment that contains insights for the current moment.  While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological.  In particular, teleological retributivism, or more simply phrased, “restorative retributivism,” already contains the descriptively and normatively restorative elements present in reconstructivism.  Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism.  Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations.  This distinction has implications for how each theory might critique modern criminal law and punishment.  For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration — skeptically, and the modern approach to punishment — both in theory and its carceral form — as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing.  This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good.  It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization.  In sum, reconstructivism and restorative retributivism are relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.

August 13, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Thursday, August 12, 2021

Highlighting the persistent problems from the US's high recidivism rate

Liz Benecchi has this effective new piece at the Harvard Political Review under the headline "Recidivism Imprisons American Progress." I recommend the full piece, and here are excerpts:

Each year, more than 600,000 individuals are released from state and federal prisons. Another nine million are released from local jails.  Within three years of their release, two out of three former prisoners are rearrested and more than 50% are incarcerated again.  This process of previously convicted criminals reoffending and reentering the prison system is known as recidivism.

Recidivism clogs the criminal justice system. Without employment opportunities and bare necessities such as housing, food, or clothing, successful reentry into society seems nearly impossible for former prisoners.

America’s recidivism crisis is far more alarming than any other democratic country in a similar economic bracket.  If prison were teaching the “lessons” corrections workers claim it does, it is concerning that so many of the same prisoners end up back behind bars.  The country’s high recidivism rate alone demonstrates that our prisons are as ineffective as they are inefficient, a sobering reality which calls for a reimagined criminal justice system....

Since the 1960s, the U.S. incarceration rate has more than tripled. Defunding rehabilitation in our justice systems directly correlates with the increase in the incarceration rate.

To put it plainly, unhealthy minds can’t make healthy choices.  The reality is 37% of incarcerated individuals and 44% of those in jail have been diagnosed with a mental health illness.  Yet, 66% of prisoners reported not receiving any form of mental health care during the full length of their incarceration.  With more accessible mental health care and substance abuse recovery for prisoners, they can be properly diagnosed and receive comprehensive treatment.  With these revamped forms of relief and stabilization, the probability that those with mental illness relapse into destructive habits is far more unlikely than if they receive no treatment at all. Our justice system has an obligation to prepare prisoners for a safe and successful reintegration, a process which starts with a healthy mind.

Prisoners who participate in education programs have a 43% lower chance of being reincarcerated than those who do not, and for every dollar spent on prison education, the government saves four to five dollars on the costs of reincarceration. Education can do wonders, and if incarcerated people left the system with degrees and hard educational skills, it would be far less difficult for them to secure and maintain steady jobs. Besides allowing the formerly incarcerated to pursue a job, education — whether that be through adult literacy, GED, or post-secondary programs — inherently shapes one’s decision-making abilities....

When prisoners are released in Norway, they stay out of prison. Norway has one of the lowest recidivism rates in the world at 20%.  The U.S. has one of the highest: 76.6% of prisoners are rearrested within five years.  Among Norway’s prison population that was unemployed prior to their arrests, they saw a 40% increase in their employment rates once released.  The country attributes this to its mission of rehabilitation and reemergence into society through its accepting and empathetic approach....

Today’s recidivism crisis calls for a paradigm shift from prisons as punitive institutions to rehabilitative ones. Implementing the rehabilitating practices of prioritizing mental health care, education, and the process of creating a prison-to-work pipeline would lower the rates of recidivism in the United States. Lower rates of recidivism do not singularly benefit society by reducing the rate of crime but also by reducing prison populations, saving taxpayers’ dollars, and most pertinently, ensuring that prisons are serving their purpose of reform and improvement.

August 12, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Tuesday, July 27, 2021

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk"

The title of this notable new forthcoming book authored by Christopher Slobogin.  It is also the title of this new SSRN posting which provides a preview of the book and an article that sets forth some of its contents. Here is the SSRN posting abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice.  Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex.

The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them.  The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.  Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

July 27, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, July 22, 2021

"The Limits of Retributivism"

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

"Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity.  They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments.  However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range.  To impose a sentence beyond this minimum would be cruel from a retributive perspective.  It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends.  Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.

July 22, 2021 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, July 19, 2021

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

NIJ releases new publication with "Guidelines for Post-Sentencing Risk Assessment"

Via this webpage, headed "Redesigning Risk and Need Assessment in Corrections," the National Institute of Justice discusses its notable new publication titled "Guidelines for Post-Sentencing Risk Assessment."  Here is how the webpage sets up the full publication:

Over the past several decades, the use of RNA in correctional systems has proliferated. Indeed, the vast majority of local, state, and federal correctional systems in the United States now use some type of RNA. Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the kind of RNA currently used across much of the country has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the full potential of RNA instruments, NIJ recently released Guidelines for Post-Sentencing Risk Assessment.  These guidelines, assembled by a trio of corrections researchers and practitioners, are built around four fundamental principles for the responsible and ethical use of RNAs: fairness, efficiency, effectiveness, and communication.  Each of these principles contributes to an innovative, practical checklist of steps practitioners can use to maximize the reliability and validity of RNA instruments.

Here is part of the executive summary from the full report:

Risk and needs assessment (RNA) tools are used within corrections to prospectively identify those who have a greater risk of offending, violating laws or rules of prison or jail, and/ or violating the conditions of community supervision.  Correctional authorities use RNA instruments to guide a host of decisions that are, to a large extent, intended to enhance public safety and make better use of scarce resources.  Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the style and type of RNA currently used by much of the field has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the potential that RNA instruments have for improving decision-making and reducing recidivism, we have drawn upon our collective wisdom and experience to identify four principles that are critical to the responsible and ethical use of RNAs.  Within each principle is a set of guidelines that, when applied in practice, would help maximize the reliability and validity of RNA instruments.  Because these guidelines comprise novel, evidence-based practices and procedures, the recommendations we propose in this paper are relatively innovative, at least for the field of corrections.

■ The first principle, fairness, holds that RNA tools should be used to yield more equitable outcomes. When assessments are designed, efforts should be taken to eliminate or minimize potential sources of bias, which will mitigate racial and ethnic disparities. Preprocessing, in-processing, and post-processing adjustments are design strategies that can help minimize bias. Disparities can also be reduced through the way in which practitioners use RNAs, such as delivering more programming resources to those who need it the most (the risk principle). Collectively, this provides correctional agencies with a strategy for achieving better and more equitable outcomes.

■  The second principle, efficiency, indicates that RNA instruments should rely on processes that promote reliability, expand assessment capacity, and do not burden staff resources. The vast majority of RNAs rely on time-consuming, cumbersome processes that mimic paper and pencil instruments; that is, they are forms to be completed and then manually scored by staff. The efficiency of RNA tools can be improved by adopting automated and computer-assisted scoring processes to increase reliability, validity, and assessment capacity. If RNA tools must be scored manually, then inter-rater reliability assessments must be carried out to ensure adequate consistency in scoring among staff.

■  RNA instruments should not only be fair and efficient, but they should also be effective, which is the third key principle. The degree to which RNA instruments are effective depends largely on their predictive validity and how the tool is used within an agency. Machine learning algorithms often help increase predictive accuracy, although developers should test multiple algorithms to determine which one performs the best. RNA tools that are customized to the correctional population on which they are used will deliver better predictive performance.

■  Finally, it is important to focus on the implementation and use of RNAs so that individuals can become increasingly aware of their risk factors. To this end, the fourth key principle is to employ strategies that improve risk communication. Training the correctional staff who will be using the RNA tool is essential for effective communication, particularly in how to explain the needs and translate it into a case plan. A risk communication system, which includes case plan improvement, treatment-matching algorithms, and graduated sanctions and incentives, provides an integrated model for decision-making that helps increase an individual’s awareness of their own circumstances and need for programming.

July 19, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, July 13, 2021

Interesting (but unclear) local report on federal sentencings in NYC impacted by COVID realities

The New York Daily News has this interesting (but less-than-clear) article discussing some federal sentencing issues under the headline "Brutal conditions in NYC jails during COVID pandemic caused federal judges to impose lighter sentences: analysis."  Here are excerpts:

Federal judges handed down dozens of lighter sentences due to brutal conditions in New York City’s federal jails during the coronavirus pandemic, new statistics obtained by the Daily News show.

A Daily News analysis of 43 cases involving people who could not afford their own attorneys shows that judges in Manhattan and Brooklyn federal courts imposed sentences that were on average 58% lower than what federal guidelines recommended.  In nearly all of the cases, judges either cited coronavirus conditions behind bars in their sentences, or attorneys emphasized the conditions in legal briefs.

In one case in July 2020, Judge Paul Engelmayer noted that punishment for Juan Carlos Aracena De Jesus’ illegal reentry into the U.S. after being deported was never supposed to include catching coronavirus. “I am mindful ... that you have served most of your time in prison so far during the worst pandemic in this country during the past 100 years,” Engelmayer said. “I’m mindful that your experience in prison as a result of the pandemic, the preceding lockdown, the ensuing lockdown, and your own illness was frightful. Prison is supposed to be punishment, but it is not supposed to be trauma of that nature or close.” While the sentence guidelines in the case was for 30-37 months, Engelmayer sentenced Aracena to time served.  He had spent six months at the Metropolitan Correctional Center in Manhattan.

Judge Paul Oetken went so far as to come up with a formula for how much credit inmates should receive toward a sentence if they were behind bars during the pandemic. “I do believe that because it’s been harsher than a usual period that it’s more punitive, that it’s essentially the equivalent of either time and a half or two times what would ordinarily be served,” Oetken said on April 2 while sentencing a low-level crack dealer.  The sentence amounted to time served for the dealer, Daniel Gonzalez, who said he has a recurring foot infection due to unsanitary showers at MCC.

In all the cases, COVID was not the sole factor judges used to determine sentences.  Judges also considered an inmate’s health, the nature of the crime and other factors.  For Victor Marmolejo, 47, the risk of deadly consequences from his diabetes resulted in him receiving an 18-month sentence when prosecutors had asked for up to four years....

Lawsuits have alleged that coronavirus ravaged the MCC in Manhattan and the Metropolitan Detention Center in Brooklyn and that staff failed to implement commonsense preventative measures. Inmates, meanwhile, were kept in lockdown and had limited or no access to family and their attorneys.  Judges have become unusually outspoken about problems at the MCC and MDC since the pandemic began....

The head of the Federal Defenders in Brooklyn, Deirdre Von Dornum, said the cases where incarcerated pretrial detainees received shorter-than-guidelines sentences based on medical and jail conditions were “far more” than they usually get.  “COVID-19 did not change the sentencing calculus.  Consistent with governing sentencing law, judges have always taken medical conditions and medical risks into account.  What changed was the breadth and depth of this medical crisis and the clear inability of MDC and MCC to protect those in their custody and care who had pre-existing medical conditions,” Von Dornum said.

I am not at all surprised to hear accounts of federal judges taking COVID-related matter into account at sentencing.  Indeed, the instructions Congress has set forth for sentencing judges in 18 USC § 3553(a) really mandates consideration of factors that COVID realities can impact in various ways.  So, what is most notable and important is not just how, but really how much, judicial sentencing decision-making is being impacted by COVID matters.

Unfortunately, this Daily News report, which the article describes as an "analysis of 43 cases involving people who could not afford their own attorneys" in Manhattan and Brooklyn federal courts, is too opaque to provide a clear picture of COVID-era sentencing realities.  During the COVID era, there have probably more than 1000 cases sentenced in Manhattan and Brooklyn federal courts, so the 43 cases analyzed by the Daily News are likely not truly representative.  Moreover, even before COVID, judges in the Eastern and Southern Districts of New York typically imposed within-guideline sentences in only about 25% of all cases.  So lots of below-guideline sentences for lots of reasons was the norm even before COVID.

That all said, the impact of COVID on sentencing practices presents critical and hard questions that I am pleased to see this local newspaper discuss.  I hope more media, as well as federal agencies and academics and many others, will keep seeking to explore these important issues.

July 13, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

"Promoting Proportionality Through Sentencing Guidelines"

The title of this post is the title of this short new paper authored by Julian V. Roberts now available via SSRN.  Here is its abstract:

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing.  The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing. 

July 13, 2021 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Friday, July 09, 2021

"Safety, Crisis, and Criminal Law"

The title of this post is the title of this notable new paper authored by Jenny Carroll and now available via SSRN.  Here is the abstract:

Concepts of safety and prevention of danger pervade the criminal law canon.  Arizona is no exception.  The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger.  The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose.  The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial.  On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.

None of this is unusual or surprising.  Criminal law has long claimed the joined realms of safety and protection as its own. The narrative of these concepts, however, is deceptively complex.  Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive.  Who warrants protection and how that protection is realized is obscure; — its precise calculation a mystery.  Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of danger not by what they are, but by what they are not.  The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation.  These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation. Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly. In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing.  For their part, those who live under the law — informal actors — may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.  This uses lessons from the COVID-19 pandemic and the response to George Floyd’s death to re-imagine these discretionary moments.

July 9, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, July 08, 2021

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.

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It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (11)

Tuesday, July 06, 2021

"The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform"

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

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system.  The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration.  Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted.  Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health.  In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.

July 6, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0)

Thursday, July 01, 2021

Hoping grandmothers and others on home confinement get compassionate consideration

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  There has been particular advocacy directed toward Prez Biden urging him to use his clemency powers to keep these persons from being returned to federal prison, and I have recently argued Congress could and should address this matter with a statutory fix.  But, critically, judges also might be able to grant relief on a case-by-case basis via sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

One person at risk of serving many more years in prison after success on home confinement, Gwen Levi, is getting particular attention because she seems like low-risk person who has already been re-incarcerated on the basis of a seemingly minor technical violation.  Here are just some of the stories discussing her plight:  

From The Root, " 76-Year-Old Black Woman Released From Prison Amid Pandemic, Sent Back for Missing Phone Calls While Taking a Class"

extraordinary and compelling reasonsFrom USA Today, "'Scared and confused': Elderly inmate sent home during COVID is back in prison after going to computer class"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

Upon hearing about this story, I expressed on Twitter my hope that Gwen Levi was pursuing a compassionate release motion.  Kevin Ring of FAMM informed me not only that she was, but also that he had submitted a letter in support of her effort to secure a sentence reduction.  Kevin recently sent me a copy of this letter and has allowed me to post it here:

Download ECF 2079 Kevin Ring letter in support of comp. release

Though I do not know all the facts surrounding the crimes and current circumstances of Gwen Levi and the 4000 other persons on home confinement at risk of going back into federal prison, I do know that these situations certainly seem to present "extraordinary and compelling reasons" to consider whether further prison time is needed.  

Some prior recent related posts:

July 1, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 30, 2021

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, June 27, 2021

Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?

In many prior posts (some linked below), I have discussed the Office of Legal Counsel memo released at the end of the Trump Administration which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  I see that there are two more notable new press articles on this topic:

From The Hill, "Biden faces criticism for not extending home confinement for prisoners"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

The somewhat scattered Post article focuses on persons sent from home confinement back into federal prison for minor technical violations while also noting that the Biden Administration could seek to rescind the OLC memo or use clemency powers to keep folks home after the pandemic is deemed over.  The lengthy Hill article is more focused on the political discussion around this issue, but my post title reflects my growing frustration with this discourse.  Here are excerpts:

President Biden is under fire for not announcing an extension of a home confinement program for prisoners that was started during the coronavirus pandemic.  Progressives and criminal justice advocates have pressured the administration for months to rescind a Trump-era policy that kills the program when the pandemic ends.  They are frustrated that Biden's remarks this week didn’t address it....

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said....

The home confinement program during the coronavirus pandemic was launched in response to the CARES Act in March and directed the federal Bureau of Prisons to prioritize home confinement for certain inmates in an effort to limit the spread of the coronavirus.  Roughly 24,000 inmates since have been sent to home confinement.

In the final days of the Trump administration, the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.  Biden and Attorney General Merrick Garland could rescind that policy....

Advocates also argue that those inmates transferred to home confinement have been monitored and largely have not violated the conditions of their situation. “If they’re so low risk and they haven’t violated the conditions, it’s hard to imagine any reason why they should be sent back,” said Maria Morris, senior staff attorney at the ACLU National Prison Project, adding that it would be a “ridiculous waste of resources.”

Many of the inmates placed in home confinement are elderly or in a vulnerable situation due to COVID-19, which posed a threat to them if they stayed inside a prison.  [Holly] Harris calls it “bad government” to send those inmates back to prisons. “At this point, the president just needs to grant them clemency and let them move on.  They are out because the Trump Administration felt it was safe enough to let them go home.  What more cover does he need?” she said.

I agree entirely with advocates saying it would be "bad government" and a "ridiculous waste of resources" to send back to prison thousands of vulnerable people who have been successful serving their sentences at home during the pandemic.  But I do not think it entirely right to describe the OLC memo as a "Trump-era policy" that is readily changed by the Biden Administration.  The OLC memo is not really a "policy" document; it is an elaborate interpretation of how the CARES Act alters BOP authority to place and keep persons in home confinement.  Though the OLC statutory interpretation requiring a return of persons to federal prison is debatable, the fact that this interpretation of the CARES Act amounts to bad policy does not itself give the Biden Administration a basis to just ignore statutory law.

Of course, statutory law notwithstanding, Prez Biden could (and I think should) use his clemency authority to extended home confinement for those at risk of being sent back to federal prison post-pandemic.  But if members of Congress are "disappointed" that the home confinement program is not being extended, they should amend the CARES Act to do exactly that with an express statutory provision!  This difficult issue stems from the text of the CARES Act; if the statutory text Congress passed when COVID first hit now is clearly operating to creates wasteful, bad government, Congress can and should fix that statutory text.  Put simply, this matter is a statutory problem that calls for a statutory fix. 

I surmise that advocates (not unreasonably) assume that getting a gridlocked Congress to "fix" this CARES Act home confinement problem through statutory reform is much less likely than achieving some other fix through executive action.  But, as I see it, exclusive focus on executive action to fix what is fundamentally a statutory problem itself contributes to legislative gridlock.  Indeed, I am more inclined to criticize the Biden Administration for not urging Congress to fix this CARES Act problem, especially because the notable success of home confinement policies during the pandemic could and should justify statutory reforms to even more broadly authorize ever greater use of home confinement in "normal" times.

Notably, three sentencing-related bill made their way through the Senate Judiciary Committee earlier this month (basics here).  Because I am not an expert on either legislative procedure or inside-the-Beltway politics, I do not know if it would be easy or impossible to include add "home confinement fix" to one of these bills.  But I do know that I will always want to believe that Congress at least has the potential to fix problems of its own creation.  But, as this post is meant to stress, I think it important not too lose sight of the fact that this is a fundamentally a congressional problem, not a presidential one.      

Some prior recent related posts:

UPDATE:  Achieving a media troika, the New York Times also published this lengthy article on this topic under the headline "Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back."  Like the Post article, this piece is a bit scattered in its focus while also directing most of the attention on the Justice Department and Biden Administration rather than highlighting Congress's critical role in this story.  This passage is especially notable:

Changing the prison system is one of the few areas that has drawn bipartisanship agreement in Washington. Senator Charles E. Grassley, Republican of Iowa, joined Democrats in criticizing the Justice Department memo, which was issued in January.

“Obviously if they can stay where they are, it’s going to save the taxpayers a lot of money,” Mr. Grassley said at the hearing [before the Senate Judiciary Committee in April]. “It will also help people who aren’t prone to reoffend and allows inmates to successfully re-enter society as productive citizens.”

The next sentence of this article, if it were telling the full story, should at the very least note that Congress could "fix" the OLC memo through a simple statutory change. I agree with Senator Grassley that it would be wrong to send all these folks back to prison after they have done well on home confinement, and so I think Senator Grassley should get together with his pals on the Capital Hill and pass a statute to that the law no longer could be interpreted to require sending them all back to prison at taxpayer expense.

June 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 24, 2021

Lovely lengthy account of "Restoring Justice"

The latest issue of Harvard Magazine has this lengthy feature article on restorative justice titled "Restoring Justice:Exploring an alternative to crime and punishment." The piece is worth making time to read in full, and here are some excerpts:

To date, 45 states have passed laws permitting the use of restorative justice in at least some criminal cases.  Programs typically function in one of three ways: as a form of diversion from the criminal process, allowing offenders — especially young or first-time offenders — to avoid charges and a conviction; as a form of alternative sentencing; or, in more serious cases, as a way to reduce a criminal sentence.  The program [Armand] Coleman and [Emmanual] Williams took part in was a fourth kind: initiated years after their convictions, it did not influence the men’s sentences or release dates, but its deeper purpose was the same — to help participants take responsibility for their wrongdoing and understand themselves better, and, to the extent possible, “make things right,” as Coleman put it....

In recent decades, numerous restorative-justice programs have sprung into existence.  A few operate entirely outside the legal system, without ever involving any authorities; others work with local police departments and district attorneys’ offices. Methodologies vary from place to place, too — making it more difficult to assess the effectiveness of the underlying concept: most analyses have focused on juvenile and first-time offenders.  But recent rigorous, randomized studies find that restorative justice typically does a modestly better job at reducing recidivism than the court system — resulting in anywhere from 7 percent to 45 percent fewer repeat arrests or convictions, depending on the study parameters. One 2015 analysis found that this effect was actually most pronounced for violent offenses and adult offenders.

Crime victims also consistently appear to be more satisfied after a restorative-justice process than after a traditional criminal one — sometimes dramatically so (in a 2017 study of its own work, Impact Justice found that 91 percent of victims said they’d recommend the process to a friend and 88 percent said the repair plan adopted by the group addressed their needs).  Surveys show that while people who have survived a crime want to feel safe, many of them also prefer rehabilitation for the perpetrators, rather than long periods of incarceration.  Researchers find that victims often perceive restorative dialogues to be fairer and more responsive to their needs and wishes.  One 2013 study of face-to-face meetings between victims and offenders found a marked decrease in victims’ post-traumatic stress symptoms and in their desire for revenge.  A multiyear randomized study in Australia found that victims of violent crime who went to court were five times more likely to believe they would be re-victimized by the offender, while those who went through a restorative process felt more secure and achieved a greater sense of closure.

Adriaan Lanni points to such findings in her argument in favor of restorative justice, but says even they fall short of the full picture. For several years, she has volunteered as a case coordinator for a Concord-based program, and has seen firsthand what happens in those conversations.  “I think you lose a lot if you just look at the quantitative analysis, like, ‘Give me the recidivism number,’” she says.  “It’s sort of a magical experience. I was skeptical about restorative justice until I started sitting in circles. But it’s really transformative, in a way that’s hard to measure.”

June 24, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)