Sentencing Law and Policy

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

I 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:

• "Addressing Violent Crime More Effectively: Excessive punishment is the wrong response to rises in homicide rates" by David Alan Sklansky

• "End Mandatory Minimums: Inflexible, harsh sentences exacerbate crime and racial disparities alike" by Alison Siegler

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:

• Brennan Center launches notable new essay series titled "Punitive Excess"
• More notable new essays in Brennan Center's "Punitive Excess" series
• Three more great new essays in Brennan Center's "Punitive Excess" series 
• Still more great new essays in Brennan Center's "Punitive Excess" series
• Another rounds of terrific new essays in Brennan Center's "Punitive Excess" series 
• Yet more must-read new essays in Brennan Center's "Punitive Excess" series 

New special issue of Science explores "Criminal Injustice: Mass Incarceration in the United States"

This new issue of Science includes a special section of articles exploring the deep roots and deep consequences of mass incarceration in the United States.  This introduction, titled "An outlier of injustice," sets up what follows this way:

For much of the 20th century, the incarceration rate in the US was relatively stable.  But beginning in the early 1970s, several decades of “tough on crime” policies contributed to a dramatic rise in incarceration.  Today, despite recent declines, the US incarceration rate remains a global outlier.  This system of mass incarceration is particularly hostile to Black Americans, who have been imprisoned in stunningly disproportionate numbers. 

Amid burgeoning interest in scholarship on criminal justice, this special issue examines social science research on the state of mass incarceration in the US: its origin and expansion, its far-reaching effects on families and communities, and why the public tolerates and encourages it.  Tracing the system’s roots back to slavery, researchers examine the interplay between incarceration, labor demand, and racial domination in the labor market.  As criminal justice infrastructure has grown more costly and vast, the system has extracted wealth from poor communities that it preys upon to fiscally survive. 

This ever-expanding web of incarceration entangles extraordinary numbers of people of all racial groups, with close to half of all Americans having a spouse or coparent, parent, sibling, or child that is or has been incarcerated.  To support such a system, many Americans psychologically deny that structural racism is at the heart of criminal justice.  Government responses to social justice protests often ignore root social causes and possible remedies and instead rely on policing.  Also, law enforcement increasingly draws upon commercial technologies that challenge public oversight and democratic policing.  Research on these topics is critical to reveal how we got here, as well as to inform and inspire change.

Here are links to the articles that follow, all of which are worth checking out:

"Policing social unrest and collective violence" by Elizabeth Hinton

"The corporate shadow in democratic policing" by Elizabeth E. Joh

"Assessing mass incarceration’s effects on families" by Hedwig Lee and Christopher Wildeman

"Exclusion and exploitation: The incarceration of Black Americans from slavery to the present" by Christopher Muller

"Toward an understanding of structural racism: Implications for criminal justice" by Julian M. Rucker and Jennifer A. Richeson

"The predatory dimension of criminal justice" by Joshua Page and Joe Soss

"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.

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

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

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

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

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

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

Key Findings 

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

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

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

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

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

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

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

KEY FINDINGS

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

RECOMMENDATIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Overall Racial Disparity

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

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

Racial Disparities at the Law Enforcement Stage

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

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

Racial Disparities at the Court Stage

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

"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.

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

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

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

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

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

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

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

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

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

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

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

A few prior recent related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine" 
• House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

Notable new report spotlights onerous nature of electronic monitoring in US

This new NBC News piece, headlined "Other than prison, electronic monitoring is 'the most restrictive form' of control, research finds" report on this interesting new report from folks at George Washington University Law School, titled "Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System."  Here are excerpts from the press piece:

In the past 18 months, as the judicial system has increasingly used electronic monitoring instead of prisons to monitor inmates through the coronavirus pandemic, newly released data confirm what activists and advocates have long argued: Ankle monitors are onerous, and they often subject wearers to vague rules, like avoiding people of “disreputable character.”  The ankle monitoring business, the research found, is also dominated by four profit-seeking companies, and it ultimately could drive more people back to prison.

The new, comprehensive collection of hundreds of electronic monitoring-related rules, policies and contracts, obtained through public records requests across 44 states, demonstrates that four companies that make millions of dollars a year account for 64 percent of the contracts examined in the study.  The companies — Attenti, BI Inc., Satellite Tracking of People LLC and Sentinel Offender Services LLC, according to the report — also keep location data indefinitely, even after monitoring is completed, which is within the law.  Governments also often require family members or employers to act as agents of the government and report potential violations, putting them in an awkward position in which they must be both supportive and supervisory.

Crucially, wearers must pay both one-time and ongoing fees for the monitors, which can be $25 to over $8,000 a year.  The report argues that such costs “undermine financial security when it is needed most.”  By comparison, the Justice Department’s Bureau of Prisons said in 2018 that it costs just under $100 per day to incarcerate a federal inmate, or over $36,000 a year....

“This is a form of incarceration that happens outside of prison walls,” said Kate Weisburd, an associate professor of law at George Washington University, who led a team of 10 law students that filed and analyzed the trove of documents . “It’s always intended to be a positive alternative to incarceration.  But based on what we found, it’s doing the opposite.  More rules and more surveillance generally leads to higher incarceration.”...

Put another way, people on monitors are subject to a vast number of government rules, which “makes compliance difficult,” according to the report.  Some of the rules are quite vague.  For example, the Alabama Bureau of Pardons and Parole mandates that wearers “shall abandon evil associates and ways,” while the New Mexico Corrections Department says parolees must “maintain acceptable behavior.”...

Weisburd’s research found that because the results are open to interpretation and wearers can be hit with “technical violations” of the rules, “people are more likely to be reincarcerated for minor infractions that previously would have been invisible and ignored.”  In most cases, electronic monitoring is coupled with a form of house arrest — wearers must stay at or near their homes for a certain amount of time. They cannot leave without permission in advance.  But according to the policies and contracts that Weisburd and her team obtained, most agencies do not clearly explain how far in advance such permission must be sought. “Basically, every record we looked at had a negative impact, and by every measure it undermines people’s ability to survive outside of prison,” she said. “Just having to comply with the sheer number of rules, vague and broad rules, it means people are getting dinged more easily.”...

The most recent data from the Pew Charitable Trust, released in 2016, found that about 131,000 people were on monitors during a single day.   Weisburd and her team say in the report that “it is likely that the numbers are higher considering the pressure to release people from incarceration because of the pandemic.”...  The frequency with which such monitoring is assigned varies wildly across the country.  For example, Weisburd’s research shows that over 11,000 people who are on probation are also on monitors in Marion County, Indiana, alone, while the entire state of Florida has less than half that number, at just over 5,400.

Here is the introduction of the 54-page report:

The use of surveillance technology to tag and track people on pretrial release, probation and parole is on the rise.  The COVID-19 crisis in prisons and jails, bail reform efforts and bipartisan support for curbing mass incarceration accelerated interest in purported alternatives to incarceration.  As a result, the use electronic monitoring devices, including GPS-equipped ankle monitors, went up dramatically.

Thanks to the leadership of community organizers and advocates, the harmful and racialized nature of this type of carceral surveillance has been exposed.  This report seeks to add to those efforts by examining the specific policies, procedures, contracts and rules that govern the use of electronic monitoring of people on probation, parole and pretrial release.  Drawing on over 247 records from 101 agencies across 44 states and the District of Columbia, this report focuses on the operation of electronic monitoring and reveals the degree to which monitoring impacts all aspects of everyday life and undermines the ability of people to survive and thrive.  In particular, this report focuses on the specific rules and policies governing people on monitors and how they restrict movement, limit privacy, undermine family and social relationships, jeopardize financial security and result in repeated loss of freedom.  Unlike traditional models of probation and parole, electronic surveillance is more intensive, restrictive and dependent on private surveillance companies that are driven by profit motive.  The findings in this report demonstrate what advocates have long said: Electronic surveillance is not an alternative to incarceration, it’s an alternative form of incarceration.  And like incarceration, the deprivations and restrictions of electronic monitoring further entrench race and class-based subordination.

Still more great essays at Inquest, including an especially disheartening book review

It has been a couple of weeks since I blogged about Inquest, which is "a forum for advancing bold ideas to end mass incarceration in the United States."  Though regular readers may tire of my promotion of the must-read essays on the site, I am not tired of spotlighting  these recently added pieces:

From Jessica González-Rojas, "Decarcerate Rikers Now: Nothing short of setting people free from the jail complex, and keeping others from going there, will prevent the death and hopelessness now ravaging it." 

From Shima Baradaran Baughman, Christopher T. Robertson & Megan S. Wright, "Cracking the Black Box: One way to keep prosecutors accountable and check their carceral impulses is by shedding some light on their vast discretion to charge crimes. Here’s a start." 

From Angel Harris, "A Judge on a Mission: Here's how a former public defender elected to judicial office in New Orleans works to chip away at mass incarceration." 

The newest posting is a book review by Daniel Harawa of Carissa Byrne Hessick's new book assailing plea practices.  The review make the dispiriting point that trials may be so biased against people of color that harmful plea practices may be the best we can hope for.   I recommend this piece in full, which is titled "Trials Without Justice: Plea bargaining may be a bad deal overall. But for many Black and Brown defendants, is the alternative any better?".  Here is a short excerpt:

Hessick’s portrayal of a plea system that’s out of control is compelling.  The solution that Hessick identifies — more trials — is important, but also raises additional questions and concerns that should not be ignored.  As Hessick explains, the problems with plea bargaining cut across racial lines, yet Black and Brown defendants have another question they must consider before standing on their trial rights — a question that white defendants can usually breeze past: How will their race affect trial?  Hessick acknowledges early on that because the book is “about the criminal justice system, it is inevitably a book about race.”  And as she shows, you cannot consider why someone may accept a guilty plea without thinking about why they would not risk trial . But there is an uncomfortable truth underlying the book: Black and Brown defendants may plead guilty because they think (or know) that they will not get a fair trial because of their race.  Just as the other coercion points that Hessick describes may push a defendant to plead guilty, so too may a defendant’s race.  The decision to go to trial can look very different for Black and Brown people than it does for white people.

"In The Extreme: Women Serving Life Without Parole and Death Sentences in the United States"

The title of this post is the title of this notable new report authored by Ashley Nellis of The Sentencing Project.  Here is how the report gets started:

Extreme punishments, including the death penalty and life imprisonment, are a hallmark of the United States’ harsh criminal legal system.  Nationwide one of every 15 women in prison — over 6,600 women — are serving a sentence of life with parole, life without parole, or a virtual life sentence of 50 years or more.  The nearly 2,000 women serving life-without-parole (LWOP) sentences can expect to die in prison.  Death sentences are permitted by 27 states and the federal government, and currently 52 women sit on death row.

This report presents new data on the prevalence of both of these extreme sentences imposed on women.  Across the U.S. there are nearly 2,000 women serving life-without-parole (LWOP) sentences and another 52 women who have been sentenced to death.  The majority have been convicted of homicide.  Regarding capital punishment, women are sitting on death row in 15 states.  As shown in Figure 1, women are serving LWOP sentences in all but six states.  Three quarters of life sentences are concentrated in 12 states and the federal system.  It is notable that in all states with a high count of women serving LWOP, there is at least one woman on death row as well.  Two exceptions to the overlap are Colorado and Michigan which do not have anyone serving a death sentence because it is not statutorily allowed.

NACDL produces notable new report on data-driven policing and racial bias in criminal justice system

As detailed in this new press release, "today, the National Association of Criminal Defense Lawyers (NACDL) released its latest report – Garbage In, Gospel Out: How Data-Driven Policing Technologies Entrench Historic Racism and ‘Tech-wash’ Bias in the Criminal Legal System."  Here is  more from the release:

As explained in the report, in recent years, police departments have been turning to and relying on rapidly developing data-driven policing technologies to surveil communities, track individuals and, purportedly, predict crime.  These technologies include algorithmic decision-making that departments claim can predict where crime is likely to occur, who will likely commit crime, and who will likely be a victim.  These algorithms are thus designed to interrogate massive troves of data gathered in a myriad of ways, using inputs that can range from police-generated crime reports to publicly available social media posts.  The outputs are then used to make critical decisions about patrols, or to make life-altering designations of individuals.

The purpose of this Report is to: (1) call attention to the rapid development and deployment of data-driven policing; (2) situate data-driven policing within the racialized historical context of policing and the criminal legal system; (3) make actionable recommendations that respond to the reality, enormity, and impact of data-driven policing; and (4) suggest strategies for defense lawyers in places where data-driven policing technology is employed.

“This Report will contribute profoundly to the national conversation regarding the inhumane, unfair, and destructive impact of racism and bias in policing,” said NACDL President Martín Antonio Sabelli.  “As the title of the Report suggests, data-driven policing technologies amplify the effects of systemic racism in policing by collecting data based on racist policing (including, for example, overpolicing of communities of color) and treating that garbage data as gospel for future policing decisions. ‘White-washing’ this biased data does nothing more than give a veneer of respectability and an appearance of neutrality while entrenching problematic practices rooted in racism.  The report calls for the abandonment of data-driven policing, wherever possible, and transparency and accountability where such practices have already become entrenched.”

“For more than two years, NACDL’s Task Force on Predictive Policing conducted research and interviews across the nation, leading to this report and the recommendations and suggested strategies set forth in it,” explained NACDL Task Force on Predictive Policing Chair Cynthia W. Roseberry.  “This report works to demystify the practice of data-driven policing to ensure that those engaged in the essential work of combatting systemic racism in the criminal legal system can operate with full information.  This report is not only an important addition to the body of scholarship in this area, it will also serve as a vital tool for advocates and defenders alike.”

The Report’s major topics include (1) the history of policing and the economics of punishment, (2) the history of surveillance and the rise of big data, (3) the landscape of data-driven policing, (4) critical analysis of data-driven policing, (5) task force recommendations on data-driven policing technologies, (6) an overview of state and local legislation, (7) an overview of police departments that have suspended or terminated contracts with data-driven policing programs, and more.

The full 100+-page report is available at this link.

"Life lessons: Examining sources of racial and ethnic disparity in federal life without parole sentences"

The title of this post is the title of this notable new article published in Criminology and authored by Brian Johnson, Cassia Spohn and Anat Kimchi.  Here is its abstract:

Alongside capital punishment, sentences to life without the possibility of parole are one of the most distinctive aspects of the American system of criminal punishment.  Unlike the death penalty, though, almost no empirical work has examined the decision to impose life imprisonment.  The current study analyzes several years of recent federal sentencing data (FY2010–FY2017) to investigate underlying sources of racial disparity in life without parole sentences.  The analysis reveals disparities in who receives life imprisonment, but it finds these differences are attributable mostly to indirect mechanisms built into the federal sentencing system, such as the mode of conviction, mandatory minimums, and guidelines departures.  Both Black and Hispanic offenders are more likely to be eligible for life sentences under the federal guidelines, but conditional on being eligible, they are not more likely to receive life sentences.  Findings are discussed in relation to ongoing debates over racial inequality and the growing role that life imprisonment plays in American exceptionalism in punishment.

More than two dozen attorneys general urge Congress to extend crack retroactivity to offenders left behind by Terry

Back in June, as discussed here, the Supreme Court embraced a limiting interpretation in Terry v. US, No. 20–5904 (S. Ct. 2021), as to who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  As detailed in this press release from the Michigan Attorney General, this past week "a bipartisan coalition of 25 attorneys general [signed a letter] urging Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses."  The full letter is available at this link, and here are excerpts from the start and close of the letter:

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018 — landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited 100-to-1 crack-to-powder cocaine ratio that Congress abolished in 2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime....

There is no reason why [lowest-level offenders] — and these individuals alone — should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section 404’s scope would simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack cocaine offenses and sentenced under the 100-to-1 ratio—including the lowest level offenders.

"A History of Early Drug Sentences in California: Racism, Rightism, Repeat"

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

For the past 100 years, harsh drug sentences have had extraordinary support from the public.  Historically enthusiasm for drug prohibition often coincides with affinities for summary justice and authoritarian social control.  Escalations of drug sentences in California from 1881 to 1961 followed a pattern of collective myth making and value signaling that insisted opiates, cocaine, and cannabis were extremely dangerous, led to other crime, and prevalently were used and sold by immigrants and other despised groups.  Demands for severe punishment seemed to peak twice, in the 1920s and 1950s, in response to exaggerated threats such as “dope peddlers” targeting children and profitable “dope rings” controlled by subversive foreigners.  Amplified by a self-seeking, robust news media and a multitude of fraternal, civic, and religious organizations, the frightful construction of illicit drugs seemed to demand an uncompromising response. Increasing terms of incarceration seemed direct, simple, and quantifiable.

But white voters always understood that drug laws targeted immigrants and communities of color, and law enforcers used extreme penalties as leverage to pursue corrupt and racist prerogatives unrelated to reducing drug use.  Drug penalties in California were developed over many decades with almost extreme levels of participation by anti-drug activists and law enforcers.  Appearing somehow scientific, the resulting arrays of penalties implied that the cruelest sentences were reserved for the truly blameworthy, when in fact they were reserved for the marginalized.  Moreover, several legal conventions born of these penalty structures — mandatory minimums, the distinction between user and seller, punishment of addiction itself, and presumptions arising from drug quantities — still exacerbate the oppressive nature of drug statutes.  As California’s drug sentences increased and complexified over the first half of the 20th century, a destructive drug law enforcement regime sanctioned by white voters was unleashed on marginalized communities in Los Angeles.

Nova Scotia Court says "historic factors and systemic racism" should be considered in sentencing an African Nova Scotian offender

A helpful reader made sure I saw this interesting story about a notable new ruling in Canada headlined "Nova Scotia Court of Appeal rules to consider history of racism, marginalization in cases."  Here are the details:

The sentencing of Black offenders in Canada is on the verge of a dramatic change after Nova Scotia’s top court ruled that, as with Indigenous offenders, trial judges need to consider the history of racism and marginalization that shaped them, and do their utmost not to put them behind bars where appropriate.

The Criminal Code has spelled out since 1996 that incarceration is a last resort for Indigenous offenders.  It does not refer to any other racialized group.  But it does say that sentences are meant to fit both the offence and the offender.  The Nova Scotia Court of Appeal, in a ruling last week, became the country’s first appeal court to draw on that principle and require a judge-made, as opposed to legislated, approach to the sentencing of Black offenders.

“The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism,” Justice Anne Derrick wrote in a 5-0 ruling. The ruling illustrates the sharp turn that will now be demanded of Nova Scotia’s judges -- a change in approach that could well spread to other provinces.  Ontario’s top court is expected to decide a case soon on whether to require a similar approach.

Like the reports written on some Indigenous offenders, known as Gladue reports, in-depth documents that tell a judge at sentencing about a Black offender’s history of exclusion and marginalization should be done from here on, or the appeal court may overturn the sentence, Justice Derrick warned.  The reports on Black offenders are known as an Impact of Race and Culture Assessment (IRCA).

The ruling was applauded by Roger Burrill, a lawyer for Rakeem Anderson, the offender in the Nova Scotia case, who was sentenced to two years of house arrest, to be followed by two years of probation for illegal gun possession.  “I think it’s impactful for the whole country, on the basis that systemic racism is completely, totally, unequivocally recognized as a factor in dealing with the principles of sentencing,” Mr. Burrill said in an interview.

It was also applauded by the Criminal Lawyers’ Association, based in Ontario, which intervened in the case. “Not to suggest colonialism is the same as what happened to Blacks in Canadian history,” Daniel Brown, a vice-president of the group, said in an interview, “but there has been a history of slavery, a history of segregation. All of that has contributed to many of these challenges they face today.”... 

The IRCA report on Mr. Anderson, co-authored by social worker Robert Wright and by Natalie Hodgson, said the offender’s best friend was killed by violence.  Ms. Hodgson testified gun possession was an accepted cultural norm in the North End of Halifax, where Mr. Anderson, in his 20s, had lived in substandard housing, surrounded by poverty and crime. “Many Black males arm themselves with guns, not because they have plans to harm someone, but rather they feel the need to protect themselves in case,” Ms. Hodgson testified.

Mr. Wright, the author of the first IRCA in Nova Scotia in 2014, testified that certain behaviours arise from “a community’s trauma and difficulty,” and that harsh treatment will neither reform the individual nor deter others from their community. His report said: “Rakeem was thrown into the world as a young adult lacking the skills and knowledge to thrive and survive; no resources, supports or interventions, without therapy for trauma and loss, and a very low elementary-level education.”

Chief Justice Williams said she had spent many hours “agonizing” over a just sentence. Mr. Anderson, a father of four young children and said to have a good heart, in some ways did not appear a good candidate for rehabilitation.  He had done little to address his education and training deficits while his case was before the court.  Ultimately though, the judge agreed with Mr. Wright and sentenced Mr. Anderson to two years of house arrest, with a 10 p.m. curfew and conditions that he attend Afrocentric therapy to address trauma, attend literacy and education programs with an Afrocentric focus and perform community service.  “Punishment does not change behaviour when the actions are rooted in marginalization, discrimination and poverty,” Chief Justice Williams said, while adding that those who endanger society must be separated from it....

The 1996 Criminal Code provision singling out Indigenous offenders for more lenient treatment has not stemmed an increase in the prison population.  Indigenous peoples now make up 31.5 per cent of federal prisoners, while they are just over 5 per cent of the country’s population.

The full ruling is available at this link.

Federal district judge dismisses illegal reentry prosecution holding "Section 1326 violates the Equal Protection Clause of the Fifth Amendment"

Though not exactly a sentencing ruling, late yesterday US Chief District Judge Miranda Du of Nevada issued a big decision in US v. Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev. Aug 18, 2021) (available here), concerning a statute that is the basis for tens of thousands of federal sentences every year.  Here is the start of the 43-page opinion in Carrillo-Lopez and its substantive conclusions:

On June 25, 2020, Defendant Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b) (“Section 1326”).  Before the Court is Carrillo-Lopez’s motion to dismiss the indictment (the “Motion”) on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).  On January 22, 2021, the Court heard oral argument on the Motion, and on February 2, 2021, the Court held an evidentiary hearing.  Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus — and as further discussed below — the Court will grant the Motion....

Carrillo-Lopez has established, and the government concedes, that the Act of 1929 was motivated by racial animus. The government does not assert the 1952 Congress addressed that history when it reenacted Section 1326.  Moreover, the government fails to demonstrate how any subsequent amending Congress addressed either the racism that initially motivated the Act of 1929 or the discriminatory intent that was contemporaneous with the 1952 reenactment.  The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326. Instead, the amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach.  Accordingly, the Court cannot find that subsequent amendments somehow cleansed the statute of its history while retaining the language and functional operation of the original statute.

In conclusion, the government has failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.  Moreover, the government’s alternative arguments — that a nondiscriminatory motive was “plain” or that subsequent amendments somehow imply the racial taint was cleansed — are not supported by caselaw nor borne out by the evidentiary record. In sum, on the record before the Court, the Court can only conclude that the government has not met its burden.  Because Section 1326 violates the Equal Protection Clause of the Fifth Amendment, the Court will grant Carrillo-Lopez’s Motion.

Scott Greenfield has an effective summary of the ruling in this new post at Simple Justice.  He notes that it "seems almost inconceivable that the Ninth Circuit won’t reverse this decision," but also highlights that "Judge Du’s decision makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine."  And here is some effective local media coverage:

• "Nevada judge strikes down immigration law aimed at illegal re-entry"
• "Nevada judge says immigration law making reentry a felony is unconstitutional, has racist origins"

This recent Quick Facts report from the US Sentencing Commission indicated that there were over 22,000 illegal reentry sentences imposed in Fiscal Year 2019, and nearly 20,000 such sentences in FY 2020. That means that, on average, in federal courts about 400 of these sentences are being imposed each and every week. Because Judge Du's opinion is not binding on other courts, this new decision will not likely disrupt this case flow dramatically. But I suspect it will be (and maybe already is) getting raised in new filings in district courts around the country.

Authors of provocative paper retract judge-specific claims about "most discriminatory" federal sentencing judges

I expressed concerns in this post last month about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges under the title "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  In addition to articulating some first-cut concerns in my initial post, I also solicited and published here an extended post by Prof. Jonah Gelbach about the work based on this Twitter thread criticizing the paper.  

This new Twitter thread by one of the authors reports that the paper has now been revised to remove judge-specific claims as to the "most discriminatory" sentencing judges, and it is now re-titled "Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges."  This new New Jersey Law Journal article, headlined "Backpedaling: Authors of Study on Racist Rulings Retract Their Claims Against Pennsylvania, New Jersey Judges," provides some more details:

The authors of a study that accused some federal judges of extreme racial and ethnic bias in sentencing have withdrawn their conclusions about specific jurists following criticism of their methodology.

An earlier version of the study, published in July by the Institute for the Quantitative Study of Inclusion, Diversity and Equity, said two Eastern District of Pennsylvania judges and one from New Jersey give Black and Hispanic defendants sentences that are twice as long as those they give to whites.

But a revised version of the study, posted Tuesday, asks readers to disregard the references to specific judges....  “A previous version of this work included estimates on individually identified judges. Thanks to helpful feedback, we no longer place enough credence in judge-specific estimates to make sufficiently confident statements on any individual judge.  We encourage others not to rely upon results from earlier versions of this work,” the revised version of the study said.

The study’s lead author, Christian Michael Smith, explained on Twitter that, “while our initial paper appreciated how random chance, systematic missing data patterns, and/or hidden structural factors for sentencing could affect judge rankings, we now regard the following possibility as less remote than we initially regarded it: that a judge who is actually unproblematic could end up on the extreme end of our discrimination estimates, due to random chance, systematic missing data patterns, and/or hidden structural factors for sentencing.”...

Gelbach, in an email, said of the retraction, ”I applaud the authors for removing the ranking of judges’ sentencing practices and for making clear that people should not rely on those rankings. Given the data limitations, that was the right decision for them to make.”

Prior related posts:

• Provocative new empirical paper claims to identify the "most discriminatory" federal sentencing judges 
• Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges 

Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges

I expressed concerns in this recent post about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges.  Upon seeing this Twitter thread by Prof. Jonah Gelbach about the work, I asked the good professor if he might turn his thread into a guest post. He obliged with this impressive essay:

---------------

This post will comment on the preprint of The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants, by Christian Michael Smith, Nicholas Goldrosen, Maria-Veronica Ciocanel, Rebecca Santorella, Chad M. Topaz, and Shilad Sen.  Doug Berman blogged about it here, and I’m grateful to him for the opportunity to publish this post here.

As I explained in a Twitter thread over the weekend, I have serious concerns about the study.  The most important concerns I raised in that thread fall into the following categories:

1. Incomplete data
2. Endogeneity of included regressors
3. Small numbers of observations per judge
4. Use of most extreme judge-specific disparity estimates

I’ll take these in turn.

(1) Incomplete Data.  It’s complicated to explain the data, whose construction involve merging multiple large data sets.  In fact, a subset of the authors have a whole other paper about data construction.  In brief, the data are constructed by linking US Sentencing Commission data files to those in the Federal Judicial Center’s Integrated Data Base, which gives them enough to form docket numbers. They then use the Free Law Project’s Juriscraper tool (https://free.law/projects/juriscraper/) to query PACER, which yields dockets with attached judges’ initials for most cases that merged earlier in the authors’ pipeline.  The authors use those initials to identify the judge they believe handled sentencing, using public lists of judges by district.

As involved as the data construction is, my primary concern is simple: the share of cases included in the data set the authors use is very low.  For 2001-2018, there were 1.27 million sentences in USSC data and 1.46 million in FJC data (these figures come from the data-construction paper, which is why they apply to the 2001-2018 period rather than the 2006-2019 period used in the estimation of “Most Discriminatory” judges).  Of these records, the authors were able to match 860k sentences, of which they matched 809k to dockets via Juriscraper.  After using initials to match judges, they have 596k cases they think are matched.  That’s a match rate of less than 50% based on the USSC data and barely 40% based on the FJC data.  The authors can’t tell us much about the characteristics of missing cases, and it’s clear to me from reading the newer paper that the match rate varies substantially across districts.

I think this much alone is enough to make it irresponsible to report estimates that purport to measure individually named judges’ degrees of discrimination.  As a thought experiment, suppose that (i) the authors have half the data, and (ii) if they were able to include the other half of the data they would find that there was no meaningful judge-level variation in estimated racial disparities in sentencing.  By construction, that would render any discussion of the “Most Discriminatory” judges pointless.  Because the authors can’t explain why cases are missed, they have no way to rule out even such an extreme possibility.  Nor do they determine what share of cases they miss for any judge in the data, because they have no measure of the denominator (perhaps they could do this with Westlaw or similar searches for some individual judges).  Their approach to the issue of missing data is to simply assume that missing cases are missing at random:

“One unknown potential source of error is that we cannot determine what percentage of each judge’s cases were matched in the JUSTFAIR database. If this missingness is as-if random with respect to sentencing variables of interest, that should not bias our results, but we have little way of determining this.” (Pages 18-19, emphasis added.)

I believe it is irresponsible to name individual judges as “The Most Discriminatory” on the basis of data as incomplete as these.

(2) Endogeneity.  The authors include as controls in their model each defendant’s guideline-minimum sentence, variables accounting for the type of charge, & various defendant characteristics.  They argue that these variables are enough to deal not only with the enormous amount of missing data (with unknown selection mechanism; see above) but also any concerns that would arise even if all cases were available.  As Doug Berman previously noted here, if prosecutors offer plea deals of differing generosity to defendants of different races, then the guideline minimum doesn’t account for heterogeneity in cases.  And note that if that happens in general, it’s a problem for all the model’s estimates. In other words, even if the particular mechanism Doug hypothesized (sweet plea deals for Black defendants in the EDPA) doesn’t hold, the whole model is suspect if the guidelines variable is substantially endogenous.

There are other endogeneity concerns, e.g., the study includes as regressors variables that capture reasons why a sentence departed from the guidelines — an outcome that is itself partly a function of the sentence whose (transformed) value is on the left hand side of the model.  And as a friend suggested to me after I posted my Twitter thread, the listed charges are often the result of plea bargains, whose consummation can be expected to depend on the expected sentence.  So the guideline minimum variable, too, is potentially endogenous.

(3) Small numbers of observations per judge. The primary estimates on which the claim about particular judges’ putative discriminatory sentencing are based are what are known as random effect coefficients on race dummies.  It’s lengthy to explain all the machinery here, but I’ll take a crack at a simplified description.

The key model output on which the authors make their “Most Discriminatory” designations are judge-level estimated Black-White disparities (the same type of analysis applies for Hispanic-White disparity).  Very roughly speaking, you can think of the estimated disparity for Judge J as an average of two things: (i) the overall observed Black-White disparity across all judges — call this the “overall disparity”, and (ii) the average disparity in the subset of cases in which Judge J did the sentencing — call this the “judge-specific raw disparity”.

For example, suppose that over all defendants, the average (transformed) sentence is 9% longer among Black defendants than among White ones; then the overall disparity would be 9%.  Now suppose that among defendants assigned to Judge J, average sentences were 20% longer for Black than White defendants; then the judge-specific raw disparity would be 20%.

The judge-level estimated disparity that results from the kind of model the authors use is a weighted average of the overall disparity and the judge-specific raw disparity. So in our example, the estimated disparity for Judge J would be a weighted average of 9% (overall disparity) and 20% (judge-specific raw disparity).  What are the weights used to form this average?  They depend on the variance across judges in the true judge-specific disparity and the “residual” variance of individual sentences — the variance that is unassociated with factors that the model indicates help explain variation in sentences.

The greater the residual variance, the less weight will be put on the judge-specific raw disparity.  This is what’s known as the “shrinkage” property of mixed models — they shrink the weight placed on judge-specific raw disparities in order to reduce the noisiness of the model’s estimated disparity for each judge. (I noted this property in a follow-up tweet to part of my thread.)

However, all else equal, greater residual variance also means that variation in judge-specific raw disparities will be more driven by randomness in the composition of judges’ caseload. Because these raw disparities contribute to the model-estimated disparity, residual variance creates a luck-of-the-draw effect in the mode estimates: a judge who happens to have been assigned 40 Black defendants convicted of very serious offenses and 40 White defendants convicted of less serious ones will have a high raw disparity due to this luck factor, and that will be transmitted to the model’s estimate disparity.

How important this effect of residual variance is context-sensitive. The key relevant factors are likely to be the numbers of cases assigned to each judge for each racial group and the size of residual variance relative to the size of variance across judges in true judge-level disparities.

As I wrote in my Twitter thread, I used the authors’ posted code and data to determine that Hon. C. Darnell Jones II, the judge named by the authors as the “Most Discriminatory”, had a total of 103 cases with Black (non-Hispanic) defendants, 37 cases with Hispanic defendants, and 67 with White defendants. Hon. Timothy J. Savage, the judge named as the second “Most Discriminatory”, sentenced 155 Black (non-Hispanic) defendants included in the estimation, 58 Hispanic defendants, and 93 White defendants.  These don’t strike me as very large numbers of observations, which is another way of saying that I’m concerned residual variance may play a substantial role in driving the model-estimated disparities for these judges.

My replication of the authors’ model shows that true judge-specific disparities in the treatment of Blacks and Whites have an estimated variance of 0.055, whereas the estimated residual variance is nearly 30 times higher — 1.59 for a single defendant.  For a judge who sentenced 40 Black and 40 White defendants, this would mean that residual variance would be 2(1.59)/40~0.08 — which is larger than the 0.055 estimated variance in true judge-level disparity.  It’s more complicated to assess the pattern for judges with different numbers of defendants by race, but I would not be surprised if the residual variance component is roughly the same size as the variance in judge-level effects.

In other words, even given the effect of shrinkage, I suspect that “bad luck” in terms of the draw of defendants might well be quite important in driving the judge-specific estimates the authors provide. Even leaving aside the missing-data problem, I think that makes the authors’ choice to name individual judges as “Most Discriminatory” problematic.

Another issue is that the judge-specific estimated disparity (remember, this is the model’s output, formed by taking the weighted average of overall and judge-specific raw disparities) is itself only an estimate, and thus a random variable.  Thus if one picked a judge at random from the authors’ data, it would be inappropriate to assume that the estimated disparity for that judge was the true value. To compare the judge-specific estimated disparity to other judges’ estimated disparities, or to some absolute standard, would require one to take into account the randomness in estimated disparity.  The authors do not report any such estimates.  Nor does the replication code they posted along with their data indicate that they calculated standard errors of the judge-specific estimated disparities.  There is no indication that I can find in either the code or the paper that they investigated this issue before posting their preprint.

(4) The many-draws problem.  Consider a simple coin toss experiment.  We take a fair coin and flip it 150 times. Roughly 98% of the time, this experiment will yield a heads share of 41.6% or greater (in other words, 41.6% is the approximate 2nd percentile for a fair coin flipped 150 times).  So if we flipped a fair coin once, it would be quite surprising to observe a heads share of 41.6% or lower.  But now imagine we take 760 fair coins and flip each of them 150 times. Common sense suggests it would be a lot less surprising to observe some really low heads shares, because we’re repeating the experiment many times.

To illustrate this point, I used a computer to do a simulation of exactly the just-described experiment — 760 fair coins each flipped 150 times. In this single meta-experiment I found that there were 13 “coins” with heads shares of less than 41.6%, just under two percent of the 760 “coins”, roughly as expected.  Given that we know all 760 “coins” are fair, it would make no sense to say that “the most biased coin is coin number 561”, even though in my meta-experiment it had the lowest heads share (36.7%, more than 3 standard deviations below the mean).  We know the coin is fair; it’s just that we did 760 multi-toss experiments, and with that much randomness we’re going to see some things that would be very unlikely with only one experiment.

Leaving aside differences across judges in the number of cases heard, this is not that different from what the authors’ approach entails.  If all judges had the same number of sentences, then they’d all have the same weights on their raw disparities, and so differences across judges would be entirely due to variation in those raw disparities.  If the residual variance component of these raw disparities is substantial (see above), then computing judge-specific model-estimated disparities for each of 760 judges would involve an important component related to idiosyncratic variation.  Taking the most extreme out of 760 model-estimated disparities is a lot like focusing on “coin” number 561 in my illustrative experiment above.

Another way to say this is that even if there were zero judge-specific disparity — even if all judges were perfectly fair — we might not be surprised to see substantial variation in the authors’ model-estimated disparities.

Now, it’s not really the case that all judges gave the same number of sentences, so there’s definitely some heterogeneity due to shrinkage as discussed above, which complicates the simpler picture I just painted for illustrative purposes.  But I suspect there is still a nontrivial “many-tosses problem” here.  Note that this is really an instance of a problem sometimes referred to as “multiple testing” in various statistics literatures; as responders to my Twitter thread noted, one place it comes up is in attempts to measure teachers’ value added in education research, and another is in ranking hospitals and/or physicians.  In other words, this isn’t a problem I’ve made up or newly discovered.

* * *

In sum, I think the paper has several serious problems.  I do not think anyone should use its reported findings as a basis for deciding which judges are discriminatory, or how much.  This is as true for people who lack confidence in the fairness of the system as for any people who doubt there is discrimination.  In other words, the criticisms I offer do not require one to believe federal criminal sentencing is pure and fair.  These criticisms are about the quality of the data and the analysis.

I want to make one final point, as I did in my Twitter thread.  Like the authors of the study, I believe that PACER should be made available to researchers.  Indeed, I recently have written a whole paper taking that position.  But I am very concerned about the impact of their work on that prospect.  The work involves problematic methods and choices and then calls out individual judges for shaming.  In my experience there’s nontrivial opposition to data openness within the federal judiciary, and I fear this paper will only harden it.

Tale of two sentencings highlights disparity and need for for better data

This lengthy new article from Cleveland.com spotlights a local example of sentencing disparity and highlights how this tale contributes to calls for statewide data-focused reforms.  The headline of the article provides a preview: "White woman who stole $250K gets probation, while Black woman who stole $40K goes to jail.  Disparate sentences spark calls for reform."  Here is how the article gets started:

Two Cuyahoga County Common Pleas Court judges doled out disparate sentences this week to women who stole public money in separate cases, reigniting calls to create a statewide sentencing database to ensure judges mete out fair punishments.

A white woman stole nearly $250,000 from the village of Chagrin Falls.  Judge Hollie Gallagher sentenced her on Monday to two years of probation.  A Black woman who stole $40,000 from Maple Heights City Schools went before Judge Rick Bell, who sentenced her Tuesday to 18 months in prison.

Leaders of Black faith organizations, labor organizations, current and former judges and social activist groups all told cleveland.com and The Plain Dealer that the stark difference between the sentences damaged the credibility of the criminal justice system and reinforced the sentiment that judges disproportionately punish people of color or those without means.

All of the leaders called on Cuyahoga County’s judges and judges around the state to join an Ohio Supreme Court pilot project that would create a public database to make transparent how judges sentence defendants and provide guardrails on judicial discretion that often results in unequal justice.  Only 10 of Cuyahoga County Common Pleas Court’s 34 judges have said they plan to sign on to the program. Six of those judges are in their first term on the bench.

“It’s kind of hard to figure how you can end up with results that are so different for similar kinds of actions,” former longtime Cleveland Municipal Court Judge Ronald Adrine said.  “Cases like these point out the need for the system to do a better job of reviewing the data because there’s lots of disparity between the way that people of color and white people are treated. But it doesn’t get captured because nobody’s really looking.”

Ohio Supreme Court Justice Michael Donnelly, who spent 14 years on the Cuyahoga County Common Pleas bench before ascending to the state’s highest court in 2019, and 8th District Court of Appeals Judge Sean Gallagher said the adoption of the database would move the state closer to identifying and correcting issues that contribute to disparities in sentencing.  “Are we satisfied with a system that would allow for two extremely different results like this?” Donnelly asked.  “Is that good policy? Does it make the community more safe, when our sentencing laws allow for that disparity? We need to ask that question in Ohio.”

Both judges said that, while judicial discretion is important, the reaction to this week’s differing sentences shows the state needs to do more to ensure that judges punish people who commit similar crimes more equally.  “If there isn’t faith in the justice system that you’re going to get a fair shake, then that’s the biggest indictment against keeping the things the way they are,” Gallagher said.

A few prior related posts:

• A notable judicial pitch for better sentencing data in the Buckeye State
• Making a great case for greater data to improve sentencing decision-making and sentencing systems
• Updating the Buckeye State's progress creating a needed felony sentencing database

Highlighting the importance of data to ensure equity in diversion efforts

Regular readers are probably used to hearing me stress the importance of data in various aspects of our criminal justice systems, and so I was pleased to see this new Law360 piece headlined "Data Collection Is Crucial For Equity In Diversion Programs." I recommend the lengthy piece in full, and here is how it starts:

Prosecutorial diversion programs are intended to create equity in the criminal justice system by stopping the incarceration of people who have mental health and substance abuse problems, but without proper data collection, prosecutors can't ensure equity in these programs, experts say.

The Prosecutorial Performance Indicators project, an initiative led by researchers at the Florida International University and Loyola University of Chicago to help prosecutors collect data to improve their methods, recently released a report that looked at racial disparities in the number of people who had their cases diverted from criminal courts to diversion programs, like mental health or drug courts.

According to the report that compared the race and ethnicity of people placed in diversion programs in four prosecutors' offices in Chicago, Jacksonville, Milwaukee and Tampa, even though overall more Black defendants than white were placed in diversion programs in three of the four cities, more white defendants than Black defendants had their felony cases placed in diversion programs in all of the cities.

With this data, prosecutors in these offices can use it to guide their policies and prosecutorial decisions, according to Melba Pearson, director of policy and programs at FIU's Center for Administration of Justice and a PPI co-manager. "While diversion is a great tool, we have to make sure that it's applied equitably, so that includes looking at factors like cost, accessibility [and] how offers are being delivered," Pearson told Law360.

In Jacksonville, the data shows that, from 2017 through 2019, the number of Black defendants that had their misdemeanor cases diverted from prosecution grew because its prosecutor's office implemented a program that gives people charged with misdemeanor traffic violations an opportunity to have their charges dropped.

The full report referenced in this article, which is titled "Race and Prosecutorial Diversion: What we know and what can be done," is available at this link.

Spotlighting considerable racial disparities in modern criminal enforcement of gun prohibitions

I came across this notable recent commentary by Jeff Jacoby in the Boston Globe titled "The very racist history of gun control: The Second Amendment right to keep and bear arms is indispensable to Black equality."  The piece highlights some of the racialized history of gun control in the US, but it failed to discuss the important modern reality of racially disparities in criminal enforcement of gun prohibitions.  And with the US Supreme Court taking up a major Second Amendment case in the coming Term with New York State Rifle & Pistol Association Inc. v. Corlett, I think it important to spotlight how gun control laws are actually enforced in federal and state criminal justice systems.

We can start in New York because the SCOTUS case comes from that state and because the Black Attorneys of Legal Aid caucus and lots of NY public defender offices filed this interesting amicus brief to highlight how gun control enforcement actually operates:

[E]ach year, we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York’s licensing regime renders the Second Amendment a legal fiction.  Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.  That remains the effect of its enforcement by police and prosecutors today.

The consequences for our clients are brutal.  New York police have stopped, questioned, and frisked our clients on the streets.  They have invaded our clients’ homes with guns drawn, terrifying them, their families, and their children.  They have forcibly removed our clients from their homes and communities and abandoned them in dirty and violent jails and prisons for days, weeks, months, and years.  They have deprived our clients of their jobs, children, livelihoods, and ability to live in this country.  And they have branded our clients as “criminals” and “violent felons” for life.  They have done all of this only because our clients exercised a constitutional right....

In 2020, while Black people made up 18% of New York’s population, they accounted for 78% of the state’s felony gun possession cases.  Non-Latino white people, who made up 70% of New York’s population, accounted for only 7% of such prosecutions.  Black people were also more likely to have monetary bail set, as opposed to release on their own recognizance or under supervision, even when comparing individuals with no criminal record.  When looking at only N.Y. Penal Law § 265.03(3) — which alleges only possession of a loaded firearm — 80% of people in New York who are arraigned are Black while 5% are non-Hispanic white. Furthermore, according to NYPD arrest data, in 2020, 96% of arrests made for gun possession under N.Y. Penal Law § 265.03(3) in New York City were of Black or Latino people.  This percentage has been above 90% for 13 consecutive years.

For another example, consider great recent work by Loyola University Chicago’s Center for Criminal Justice Research, Policy and Practice in recent reports on "Arrests in Illinois for Illegal Possession of a Firearm" and "Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois."  Here is key arrest data from this first report: "Black males between the ages of 18 and 24 had the highest arrest rate statewide; for every 100,000 Black male between the ages of 18 and 24, there were 2,404 arrests....  By comparison, the statewide arrest rate for White males between 18 and 24 was 307 per 100,000, and 1,108 per 100,000 for Hispanic males between 18 and 24."  And case-processing data from the second report details how Black offenders are more likely to be convicted on more serious charges: "[T]he majority (79%) of convictions for Class 2 felonies occurred in Cook County, whereas the majority (59%) of convictions for Class 3 felonies occurred outside Cook County.  Also, while the majority of those convicted of either felony class were Black individuals, a larger share of those convicted of the more serious Class 2 felony were Black (83%), compared to 64% of those convicted of Class 3 felony offenses."

And, lest one think these kinds of racial disparities are unique to state systems, the US Sentencing Commission published in March 2018 this potent report titled "Mandatory Minimum Penalties For Firearms Offenses In The Federal System."  Here is part of that report's "Key Findings" under the heading "Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group" (with my emphasis added):

• Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group.  In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
• The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act.  Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
• Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group.  In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders.  Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
• Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders.

Of course, the Supreme Court's eventual Second Amendment ruling in the Corlett case, no matter what it holds or says, is highly unlikely to dramatically alter the considerable racial disparities in modern criminal enforcement of gun prohibitions.  But, as debate over Second Amendment jurisprudence and gun control policy heats up in the coming months, I hope everyone keeps in mind the disconcerting demographic realities that consistently define modern criminal enforcement practice in the gun control space.

Provocative new empirical paper claims to identify the "most discriminatory" federal sentencing judges

Via Twitter, I was altered to this notable new empirical paper by multiple authors titled "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  The paper's title alone likely explains why I describe it as provocative, and this abstract provides more context about the paper's contents:

In the aggregate, racial inequality in criminal sentencing is an empirically well- established social problem. Yet, data limitations have made it impossible for researchers to systematically determine and name the most racially discriminatory federal judges.  The authors use a new, large-scale database to determine and name the observed federal judges who impose the harshest sentence length penalties on Black and Hispanic defendants.  Following the focal concerns framework, the authors (1) replicate previous findings that conditional racial disparities in sentence lengths are large in the aggregate, (2) show that judges vary considerably in their estimated degrees of racial discrimination, and (3) list the federal judges who exhibit the clearest evidence of racial discrimination.  This list shows that several judges give Black and Hispanic defendants double the sentences they give observationally equivalent white defendants.  Accordingly, the results suggest that holding the very most discriminatory judges accountable would yield meaningful improvements in racial equality.

The "new, large-scale database" used for this study is this JUSTFAIR data source published online last year.  I have not previously blogged about the JUSTFAIR data because I have never been sure of its representativeness since the source says it includes nearly 600,000 cases over a recent 18-year period (from 2001 to 2018), but more than twice that number of persons have been sentenced in federal courts during that span.  I fear I lack the empirical chops to know just whether to be reasonably confident or highly uncertain about the JUSTFAIR data, and that broader concern colors my thinking about this provocative new paper's claims that the authors have been able to identify the "most racially discriminatory federal judges."

I would love to hear from readers with strong empirical backgrounds about whether this new paper effectively demonstrates what it claims to identify.  I am initially skeptical because the the two judges labelled "most discriminatory" come from the same federal judicial district and only a few districts are among those that have all the identified "discriminatory" judges.  That reality leads me to wonder if case-selection realities, rather than "discrimination," may at least in part account for any observed racial differences in sentencing outcomes.  Relatedly, when I dig into the local data at the JUSTFAIR data site, the judges identified in this new paper as the "most discriminatory" do not seem to have anywhere close to the most racially disparate rates of above/below guideline sentencing outcomes even within their own districts.

In short, without a much better understanding of the empirics at work here, I am not confident about what this new empirical paper is claiming.  But I am confident that I would like to hear from readers as to what they think about this provocative new paper on an always important topic.

Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity?

At last month's Senate Judiciary Committee Hearing on "Examining Federal Sentencing for Crack and Powder Cocaine," the Biden Administration through the testimony of Regina LaBelle rightly stated that the crack-powder sentencing disparity produces "significant injustice":

The Biden-Harris Administration strongly supports eliminating the current disparity in sentencing between crack cocaine and powder cocaine.  The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color.  The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.  Therefore, the Administration urges the swift passage of the “Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act.”

In addition, the US Department of Justice submitted testimony (linked below) that rightly stated that "it is long past time" to end the crack-powder sentencing disparity:

The Department strongly supports the legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine.  The crack/powder sentencing disparity has unquestionably led to unjustified differences in sentences for trafficking in two forms of the same substance, as well as unwarranted racial disparities in its application.  The sentencing disparity was based on misinformation about the pharmacology of cocaine and its effects, and it is unnecessary to address the genuine and critical societal problems associated with trafficking cocaine, including violent crime.

Download DOJ EQUAL Act Testimony- FINAL

In light of these forceful statements, I have been optimistic that the EQUAL Act might move forward in Congress fairly soon even though the pace of congressional action is always uncertain.  At the same time, I hoped that federal prosecutors under the authority of Attorney General Garland might do what they could ASAP, in the exercise of their charging and sentencing authority, to minimize the impact of the crack-powder disparity as Congress works on a permanent legislative fix.  After all, if DOJ really believes that "it is long past time to end the disparity" and that the disparity is based on "misinformation" which produces "unwarranted racial disparities," then a department purportedly committed to justice surely ought not keep charging crack mandatory minimums and advocating for guideline sentences based on this disparity.

But I have heard from defense attorneys in the know that statements about existing crack sentencing provisions creating "significant injustice in our legal system" have seemingly not trickled down to federal prosecutors, who are still generally charging crack mandatory minimums and arguing for within-guideline crack sentences.  And I have be authorized to share this recent statement from the Federal Defenders to DOJ: "We were glad to see the Department’s recent support for legislation to end the crack-powder disparity but reports from the field indicate that line prosecutors continue to indict mandatory-minimum crack cases and seek guideline sentences that rely on the discredited ratio."

Talking the talk to Congress about reform is an important aspect of what the executive branch can do to improve our justice system. But the Justice Department can and should also be expected to walk the walk.  But so far, it seems, federal prosecutors are not really ready to give up the crack-powder disparity, even though DOJ asserts that "it is long past time" to do so. Sigh.

House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

At a time of problematic and often ugly partisanship inside the Beltway, I have continued to believe and hope that a number of federal sentencing reforms could and should still be able to secure significant bipartisan support.  This belief was reinforced yesterday when the House Judiciary Committee voted 36 to 5 to advance the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  Excitingly, not only does this bill reduce crack statutory sentences to the level of powder cocaine offenses, it also provides for all previously convicted crack offenders to obtain a resentencing.  (Recall that neither the Fair Sentencing Act of 2010 nor the FIRST STEP Act of 2018 included full retroactivity for the sentencing reductions in those reform bills.)

I want to believe that the overwhelming vote in support of the EQUAL Act in the House Judiciary Committee means that a vote a passage by the full House will be coming soon.  I also want to believe that the bill, which also has bipartisan Senate support, could move efficiently through the upper chamber and become law this year.  But, because the politics and ways of Congress are always mysterious, I am not assuming passage is a sure thing and I have no idea what the timeline for the bill's potential progress will be going forward.  All I know is that it is now more than a quarter-century since the US Sentencing Commission first explained to Congress why a big crack/powder sentencing difference was unjustified and unjust, so the EQUAL Act cannot become law too soon and is way too late.  But better late than never, I still hope.

Notably, we are already approaching three years since passage of the FIRST STEP Act and there is yet to be a next step.  Though I would like to see many more statutory sentencing reform steps from Congress that go far beyond the EQUAL Act, I still think reforms can and should be happy right now with even baby steps in the right direction from a divided Congress.  And,  critically, the EQUAL Act would be a consequential baby step: USSC data indicate that more than 8000 people are in federal prison for crack offenses now and that more than 100 people are sentenced on crack offenses each month.  So literally thousands of people will be impacted if the EQUAL Act becomes law, and then, if/when this reform is finally achieved, we can work on correcting the next and the next and the next injustice baked into federal sentencing law and practice. 

A few prior related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine" 

Highlighting the drug war's continuing extraordinary toll on people of color

The AP has this lengthy new piece headlined "50-year war on drugs imprisoned millions of Black Americans."  I am a bit troubled by the use of the past tense in the headline because the casualties of the drug war continue to grow every minute of every day we rely on the criminal justice system to deal with drug issues. But, headline quibble aside, this extended AP piece is worth a full read, and here are excerpts:

Fifty years ago this summer, President Richard Nixon declared a war on drugs.  Today, with the U.S. mired in a deadly opioid epidemic that did not abate during the coronavirus pandemic’s worst days, it is questionable whether anyone won the war.

Yet the loser is clear: Black and Latino Americans, their families and their communities.  A key weapon was the imposition of mandatory minimums in prison sentencing.  Decades later those harsh federal and state penalties led to an increase in the prison industrial complex that saw millions of people, primarily of color, locked up and shut out of the American dream.

An Associated Press review of federal and state incarceration data shows that, between 1975 and 2019, the U.S. prison population jumped from 240,593 to 1.43 million Americans. Among them, about 1 in 5 people were incarcerated with a drug offense listed as their most serious crime.

The racial disparities reveal the war’s uneven toll. Following the passage of stiffer penalties for crack cocaine and other drugs, the Black incarceration rate in America exploded from about 600 per 100,000 people in 1970 to 1,808 in 2000.  In the same timespan, the rate for the Latino population grew from 208 per 100,000 people to 615, while the white incarceration rate grew from 103 per 100,000 people to 242....

Although Nixon declared the war on drugs on June 17, 1971, the U.S. already had lots of practice imposing drug prohibitions that had racially skewed impacts. The arrival of Chinese migrants in the 1800s saw the rise of criminalizing opium that migrants brought with them. Cannabis went from being called “reefer” to “marijuana,” as a way to associate the plant with Mexican migrants arriving in the U.S. in the 1930s.

By the time Nixon sought reelection amid the anti-Vietnam War and Black power movements, criminalizing heroin was a way to target activists and hippies. One of Nixon’s domestic policy aides, John Ehrlichman, admitted as much about the war on drugs in a 22-year-old interview published by Harper’s Magazine in 2016.

Experts say Nixon’s successors, Ronald Reagan, George H.W. Bush and Bill Clinton, leveraged drug war policies in the following decades to their own political advantage, cementing the drug war’s legacy. The explosion of the U.S. incarceration rate, the expansion of public and private prison systems and the militarization of local police forces are all outgrowths of the drug war.

Federal policies, such as mandatory minimum sentencing for drug offenses, were mirrored in state legislatures.  Lawmakers also adopted felony disenfranchisement, while also imposing employment and other social barriers for people caught in drug sweeps.

The domestic anti-drug policies were widely accepted, mostly because the use of illicit drugs, including crack cocaine in the late 1980s, was accompanied by an alarming spike in homicides and other violent crimes nationwide.  Those policies had the backing of Black clergy and the Congressional Black Caucus, the group of African-American lawmakers whose constituents demanded solutions and resources to stem the violent heroin and crack scourges.

“I think people often flatten this conversation,” said Kassandra Frederique, executive director of the Drug Policy Alliance, a New York-based nonprofit organization pushing decriminalization and safe drug use policies. “If you’re a Black leader 30 years ago, you’re grabbing for the first (solution) in front of you,” said Frederique, who is Black.  “A lot of folks in our community said, ‘OK, get these drug dealers out of our communities, get this crack out of our neighborhood. But also, give us treatment so we can help folks.’” The heavy hand of law enforcement came without addiction prevention resources, she said.

"Prosecutorial Roles in Reducing Racial Disparities in the Justice System"

The title of this post is the title of this interesting new R Street report authored by Nila Bala, Casey Witte and Lars Trautman.  Here is its executive summary:

The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system.  In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences.  While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful.  With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities.  This paper examines the sources of racial disparities in the criminal justice system, the ways in which prosecutors may contribute to them and finally, actions that prosecutors can take to help reduce these disparities.  These recommendations include better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs and implementing algorithmic color-blind charging.

"Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision"

The title of this post is the title of this short report from the National Academies of Sciences, Engineering, and Medicine capturing the proceedings of a notable workshop. Here is how the report is described:

The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States.  This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process. Speakers at the workshop presented on deeply rooted inequalities within the criminal justice system, which exist not only in readily measured areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision.  This publication highlights the presentations and discussion of the workshop.  

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

• Black Disparities in Youth Incarceration
  • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
  • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
• Latinx Disparities in Youth Incarceration
  • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
  • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
• Tribal Disparities in Youth Incarceration
  • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
  • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

Derek Chauvin gets 22.5 years for killing George Floyd

I am on the road, so will not have a chance to comment until probably tomorrow.  Readers should feel free to share their reactions and thoughts.

UPDATE:  Here are links to a few press pieces regarding the Chauvin sentencing:

From Law360, "Chauvin Sentenced To 22.5 Years In Prison For Floyd Murder"

From the Minneapolis Star Tribune, "Derek Chauvin's sentencing sparks relief but also resolve to keep fighting injustice"

From NBC News, "Chauvin sentence wasn't the max, but it provided some closure"

From NPR, "George Floyd's Family Says Chauvin's Sentencing Is One Step Closer To Healing"

ANOTHER UPDATE:  I just recently saw this reprinted version of the full sentencing order from Hennepin County District Judge Peter Cahill when he sentenced Derek Chauvin. Here is the short conclusion to the lengthy discussion:

Part of the mission of the Minneapolis Police Department is to give citizens “voice and respect.”  Here, Mr. Chauvin, rather than pursuing the MPD mission, treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor.  In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.

Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack

While awaiting the start of this morning's US Senate Judiciary Committee hearing ,"Examining Federal Sentencing for Crack and Powder Cocaine," at which it seems there will be considerable advocacy for lowering crack cocaine sentences to finally be in parity with powder cocaine sentence (basics here), I thought to look through some of the archives of the Federal Sentencing Reporter to see how many articles have have had folks discussing (and often sharply criticizing) crack sentences. 

Because crack sentencing rules have been subject to so much justified criticism and seen modest reform in recent years, the number of FSR articles on this topic feels more than a bit overwhelming.  Here is an abridged list of articles that caught my eye to show the varied list of authors and laments through the years:

From 1990 by Deborah Young, "Rethinking the Commission's Drug Guidelines: Courier Cases Where Quantity Overstates Culpability" 

From 1992 by Catharine M. Goodwin, "Sentencing Narcotics Cases Where Drug Amount Is a Poor Indicator of Relative Culpability"

From 1992 by Robert S. Mueller, "Mandatory Minimum Sentencing"

From 1993 by Ronald F. Wright, "Drug Sentences as a Reform Priority"

From 1993 by Richard Berk, "Preliminary Data on Race and Crack Charging Practices in Los Angeles"

From 1994 by Marc Miller and Daniel J. Freed, "The Disproportionate Imprisonment of Low-Level Drug Offenders"

From 1995 by David Yellen, "Reforming Cocaine Sentencing: The New Commission Speaks"

From 1998 by Carol A. Bergman, "The Politics of Federal Sentencing on Cocaine"

From 1999 by Kyle O'Dowd, "The Need to Re-Assess Quantity-Based Drug Sentences"

From 2001 by Paula Kautt, "Differential Usage of Guideline Standards by Defendant Race and Gender in Federal Drug Sentences: Fact or Fiction?"

From 2003 by Alfred Blumstein, "The Notorious 100:1 Crack: Powder Disparity--The Data Tell Us that It Is Time to Restore the Balance"

From 2005 by Ryan S. King and Marc Mauer, "Sentencing with Discretion: Crack Cocaine Sentencing After Booker"

From 2007 by Steven L. Chanenson and Douglas A. Berman, "Federal Cocaine Sentencing in Transition"

From 2007 by Mark Osler, "More than Numbers: A Proposal For Rational Drug Sentences"

I will stop with these links to these 15 FSR articles because I am already overwhelmed and there were dozens more articles I could have highlighted just from the period before recentfederal  crack sentencing reforms. Notably, in 2007, the US Sentencing Commission finally did a first round of (modest) crack guideline reductions, then in 2010 we got the Fair Sentencing Act and it echoed through another round of guideline reductions.  And yet, as witnesses are noting in today's Senate hearing, we still have a disparate and unjustified disparity in our cocaine sentencing laws.  Moreover, as many of the articles above highlight, our enduring commitment to a quantity-based federal drug sentencing structure is a deep problem at the root of our so many of our federal sentencing woes.

US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine"

On the morning of Tuesday, June 22, 2021, the US Senate Judiciary Committee has a hearing set for 10am titled "Examining Federal Sentencing for Crack and Powder Cocaine." The hearing should be available to watch at this link, where this list of witnesses are set out:

Ms. Regina LaBelle, Acting Director, Office of National Drug Control Policy

The Honorable Asa Hutchinson, Governor, State of Arkansas

Mr. Matthew Charles, Justice Reform Fellow, FAMM

The Honorable Russell Coleman, Member, Frost Brown Todd

Mr. Antonio Garcia, Executive Director, South Texas High Intensity Drug Trafficking Area

Mr. Steven Wasserman, Vice President for Policy, National Association of Assistant U.S. Attorneys

Notably, the Washington Post here reports on what Ms. Regina LaBelle will be saying in her testimony as well as some of the political context around this hearing.  Here is part of the story:

The Biden administration plans to endorse legislation that would end the disparity in sentences between crack and powder cocaine offenses that President Biden helped create decades ago, according to people with knowledge of the situation — a step that highlights how Biden’s attitudes on drug laws have shifted over his long tenure in elected office.

At a Senate Judiciary Committee hearing Tuesday, Regina LaBelle, the acting director of the White House Office of National Drug Control Policy, plans to express the administration's support for the Eliminating a Quantifiably Unjust Application of the Law Act, or Equal Act. The legislation, which sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.) and Sens. Cory Booker (D-N.J.) and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle says in prepared written testimony obtained by The Washington Post in advance of the hearing. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end. Therefore, the administration urges the swift passage of the ‘Eliminating a Quantifiably Unjust Application of the Law Act.’ ”...

Outside coalitions backing Durbin and Booker’s bill have focused particularly on shoring up conservative support as part of their larger criminal justice overhaul agenda. To that end, one of the witnesses testifying in favor of the bill Tuesday is Gov. Asa Hutchinson of Arkansas, a Republican who led the Drug Enforcement Administration under President George W. Bush.

“Although Congress has taken steps to reduce the disparity and provide some retroactive relief, any sentencing disparity between two substances that are chemically the same weakens the foundation of our system of justice,” Hutchinson says in his prepared remarks, also obtained by The Post.  “Congress now has the opportunity to build on the bipartisan successes of the Fair Sentencing Act and the First Step Act by eliminating the sentencing disparity between crack cocaine and powder cocaine once and for all.  The strength of our justice system is dependent on the perception of fundamental fairness.”

Russell Coleman, a former counsel to now-Senate Minority Leader Mitch McConnell (R-Ky.) and former U. S. attorney for the Western District of Kentucky, will also promote the legislation at the hearing Tuesday morning.

A few prior related posts:

• An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration
• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 
• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 

Juneteenth reflections on American justice systems

Befitting this forum, I thought to celebrate the first official federal holiday year for Juneteenth by rounding up some recent articles about the perspective it can provide on criminal justice issues in our nation. Here goes:

From the AP, "Lawmakers mark Juneteenth by reviving ‘abolition amendment’"

From the Brookings Institution, "To celebrate Juneteenth, elect officials focused on ending mass incarceration"

From PBS NewsHour, "Lawmakers call for an end to forced labor for felons to mark Juneteenth"

From Teen Vogue, "Juneeteenth Is a Celebration of Liberation, But Mass Incarceration Lives On"

From the Vera Institute of Justice, "The Chains of Slavery Still Exist in Mass Incarceration"

From the Wausau Pilot & Review, "Juneteenth: Freedom’s promise is still denied to thousands of blacks unable to make bail"

"The Mark of Policing: Race and Criminal Records"

The title of this post is the title of this recent piece authored by Eisha Jain published in the Stanford Law Review Online. Here is its abstract:

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records.  Arrests alone — regardless of whether they result in convictions — create criminal records.  Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences.  This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.  The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction.  Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas.  The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible.  This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities.

SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started:

In 1986, Congress established mandatory-minimum penalties for cocaine offenses.  If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence.  Congress set the quantity thresholds far lower for crack offenses than for powder offenses.  But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold.  The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum qualify.  They do not.

Justice Sotomayor has an extended concurring opinion in Terry (it is a bit longer than the majority opinion).  She explains at the start of this opinion that she writes separately "to clarify the consequences of today’s decision.  While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind."

I will likely have a lot more to say about this Terry ruling and its potential echoes once I get a chance to read it more closely.

Youth, gender, mental illness, abuse, co-defendant disparity all part of Tennessee capital case perhaps nearing an execution date

This new lengthy article in the Knoxville News Sentinel, headlined "How young is too young for a death sentence? Christa Pike fights move to set execution date," discusses a remarkable case from the Volunteer State. I could imagine spending an entire semester discussing this case with students because it engages so many sentencing issues, and here are just some of the particulars:

What's the difference between being 17 years old and being 18? In Christa Gail Pike's case, her lawyers say, the difference is a death sentence.

The state wants to set an execution date for Pike, now 45 and the only woman on Tennessee's death row.  She was 18 years old when she and two other participants in a Knoxville job program for troubled teens killed Colleen Slemmer in a remote spot on the University of Tennessee's agriculture campus.

Pike, her boyfriend Tadaryl Shipp and fellow Job Corps student Shadolla Peterson lured Slemmer, 19, to campus the night of Jan. 12, 1995.  Once there, Slemmer was beaten, cut and bludgeoned to death with a rock.  Pike kept a piece of her skull as a souvenir. Investigators identified a love triangle between Pike, Shipp and Slemmer as the motive for the crime.

Only Pike received a death sentence for her role in the killing.  Peterson cooperated with investigators and walked away with probation.  Shipp was 17 — too young to be put to death.  He's serving a life sentence and will be eligible for parole in 2028.

Pike's legal team cites that difference in a new court filing asking the Tennessee Supreme Court to delay her execution — or recommend it be stopped altogether.  "Mr. Shipp was 17 years old at the time of Ms. Slemmer’s death. Christa Pike was 18.  That is the difference between a death sentence and parole eligibility in 2028," reads the filing signed by defense attorneys Stephen Ferrell and Kelly Gleason.  "That difference cannot be equated with increased maturity or brain development. Christa was not more mature or more responsible than Mr. Shipp."

The Tennessee Attorney General's Office is asking the high court to set an execution date for Pike, contending she has exhausted her appeals. But Pike's defense team says it's still too soon.  They've lodged several arguments, including one centered on her mental illness and youth at the time of the crime.

A jury condemned Pike in March 1996.  Nine years later, the U.S. Supreme Court abolished the juvenile death penalty in the landmark case Roper v. Simmons....  The court drew the line at 18, but Pike's attorneys argue its logic should extend beyond that. They point to scientific research that the brain isn't fully developed until after age 20 and that there's no way to differentiate between the brains of young people.

"There is thus no justification for a drastic differentiation in punishment between a 17-year-old offender and an 18-year-old offender," the filing reads. "And the question is an important one, for Christa Pike was eligible for the death penalty in this case and her co-defendant, Tadaryl Shipp, was not."

The lawyers paint Shipp — not Pike — as the ringleader of the group. Shipp was violent and controlling, they write, while Pike was suffering from undiagnosed bipolar disorder and brain damage after a childhood filled with sexual and physical abuse. Her mother drank while she was in the womb, and she was twice raped as a child.

"It is also significant that, in addition to her youth, Christa Pike was also brain damaged and severely mentally ill at the time of her offense," the filing reads.  "Thus, practical effects of the immaturity that would be inherent in the brain of any eighteen-year-old were magnified by other problems that adversely affected Christa’s developing brain."

Courts have shot down similar arguments in Pike's case before....  The U.S. Supreme Court declined to take up the case last year.  Pike's attorneys now are asking the Tennessee Supreme Court to recommend that Gov. Bill Lee commute Pike's sentence to life with or without the possibility of parole.  At the very least, they're asking for more time so a psychologist can examine Pike in prison and so the Inter-American Commission on Human Rights can finish investigating whether Pike's human rights have been violated.

Lee could grant Pike clemency but has not done so for any other death-row inmate since he was inaugurated in January 2019.  The state has executed four men since then, including Nicholas Sutton, a Morristown man who killed four people and turned his life around on death row.

Pike has had additional legal troubles while in prison.  In 2004, she was convicted of attempted murder for nearly strangling a fellow inmate with a shoestring.

Pike would be the first woman Tennessee has executed in over 200 years, her attorneys say, and the first person it's put to death "in the modern era" who was a teenager at the time of the crime.

GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses"

In this new Fox News commentary, Arkansas Gov Asa Hutchinson makes a notable pitch for the EQUAL Act (discussed here).  The piece is headlined "It's time to fix an old wrong and end the disparity between crack and cocaine offenses," and I recommend it in full.  Here are excerpts:

In America, the principles of fairness and equal treatment are fundamental to the rule of law.  When we fall short of these principles, we lose confidence in our justice system and weaken the foundation of our country.  Since 1986, there has been a substantial difference in prison sentences for crack and powdered cocaine offenses, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but has also been the source of unequal punishment for basically identical crimes....

During my time in Congress in the 1990s, and as the head of the Drug Enforcement Administration (DEA) from 2001-2003, I saw first-hand the impact of this disparity, and found it was failing on three fronts.  First, it rarely led to the prosecution of major drug traffickers and sellers.  Instead, it led to increased prosecutions of small-time dealers and peripheral supporters, almost all of whom were replaced immediately.

Second, it became clear that the disparity was built on a misunderstanding of crack cocaine’s chemical properties and effects of the body.  Crack and powdered cocaine were chemically the same, and the violence that was linked to crack cocaine was not related to the properties of the drug.  Instead, it was the general product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold.

Third, it undermined community confidence in the fairness of the criminal justice system. I talked with drug task force officers and front-line agents at the DEA who said this sense of injustice had a real impact in the fight against illegal drugs; it made it more difficult for agents to build trust and work with informants in the areas most impacted by the crack epidemic.  The disparity in sentencing led to more harm than help in our federal anti-crime efforts.

The bipartisan Fair Sentencing Act, sponsored by Sens. Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., dramatically reduced the disparity, from 100:1 to 18:1.  In 2018, the First Step Act, signed into law by President Donald Trump, made that reduced disparity retroactive.

Those were important steps, but the new sentencing laws continue to cause disproportionate harm and decreased trust in communities of color.  For example, in 2019, Black people accounted for 81% of all federal crack cocaine convictions. Those convictions led to prison terms 18 times longer than they would have been for equivalent amounts of chemically identical powdered cocaine.

It is time for Congress to finish what it started, and finally and fully end the disparity between crack and cocaine offenses.  The bipartisan Equal Act would bring federal sentencing law in line with most states that have eliminated, reduced or never instituted, these unjust disparities. That includes my home state of Arkansas, where possession of crack and powdered cocaine are treated the same under state law....

The strength of our justice system is totally dependent on the perception of fairness and the concept that punishments should fit the crimes.  The clear and pernicious injustice of crack and powdered cocaine sentencing disparities harms our communities, limits law enforcement in their fight against illegal drugs, and weakens the foundation of our entire system of justice.

Congress has the opportunity to fully and finally eliminate this injustice by passing the Equal Act.  To get it done, lawmakers of all different backgrounds will need to put partisanship aside and work in the best interests of the American people.  I can’t think of a worthier cause than preserving our founding principle — that all Americans are treated equally under the law.

I am fully supportive of efforts to equalize federal crack and powder sentencing rules which are now based largely around the quantity of drugs involved in the offense.  But, for truly effective reform, I believe we need to not only move entirely away from any quantity-based approaches to drug offense sentencing, but also start moving away from punitive criminal justice responses to drug activities.

A few prior related posts:

• New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses 
• Small, and not quite steady, reform progress in a not quite new era for criminal justice reform 

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

“Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

"The Persistence of Penal Disenfranchisement: Suppressing Votes the Old Fashioned Way"

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

This article discusses penal disenfranchisement, the practice of prohibiting millions of American citizens who have been convicted of crimes from voting.  Most states have laws providing for penal disenfranchisement.  The article argues that barring individuals from voting by reason of a prior criminal conviction is both unjustified and counterproductive. The public interest is best served by integrating individuals who have offended into society, and this interest is not served by denying such individuals the right to vote.

The article explores the history of penal disenfranchisement and the various reasons that have been offered over the years in support of it, both non-punitive and punitive, and explains why none are persuasive.  Further, the piece argues that the practice of penal disenfranchisement is particularly harmful to the interests of the African-American community.  Finally, the article discusses whether there are any possible means of relief for people disenfranchised because of a prior conviction.  With respect to legal remedies, the article concludes that Supreme Court precedent regarding the issue unfortunately is unhelpful.  The article also finds that at the present time, it is unlikely that a great deal of progress is likely to be made through legislation.

"The Feminist Script for Punishment"

The title of this post is the title of this new article/book review by I. India Thusi now available via SSRN.  Here is its abstract:

In her new book, The Feminist War on Crime, Professor Aya Gruber provides a critique of feminists, who have sought political vindication through a governance of punishment. Professor Elizabeth Bernstein coined the term “carceral feminism” to describe the feminist commitment to “a law and order agenda and . . . a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”  While feminist movements have expanded the opportunities available to women and girls, too often their means for achieving these accomplishments have been paved on a path of the privileges of feminist elites.  These privileges are immune from the pressures of multiple forms of subordination that form the interstitial web of inequality that many other women encounter.  These other women are also Other women, in that they are often outsiders in American society, not just because they are women, but also because they are women of color, poor, immigrant, less educated, disabled, and/or queer.  The positionality of these Other women is important because they often have personal experiences that make engagement with the state apparatus for punishment undesirable.  Black feminists advanced the concerns of the Other women through their activism for state responses that address the systemic, material conditions that make women vulnerable to violence, rather than through engagement with the technologies of punishment.  Other women have experienced state violence, either through the inherited trauma that runs in their blood from the violence against their ancestors, or through their daily experiences of everyday subordination within their communities. White, elite feminists have often missed their perspectives.  Or, at times, they have outright demeaned their perspectives. Either way, the path to gender equality has had an unsettling entanglement with carcerality. And the logics of punishment and imprisonment have informed feminist demands for reforms. This feminist fascination with the carceral is the subject of Gruber’s book.

Gruber’s historical analysis of the entanglement between feminism and incarceration illustrates that the feminist rage against the patriarchy has at times transformed into retributivist impulses to punish, which contradict feminist values and exacerbate social injustice. Gruber recounts several examples of feminist campaigns that advanced a feminist script for punishment.  Many of these campaigns were motivated by the laudable aim of eradicating violence against women and improving women’s ability to lead safe and healthy lives.  The various feminist campaigns for more punishment occurred in different decades and had various leaders. But they all share a common script about punishment.  They developed similar story lines about women.  They painted victims and villains that look remarkably similar through the decades.  They subscribe to the same dominant story about the role of the criminal law as a sword against perpetrators.  While the individual characters in the script vary and are not always identical, many of the elements that advance their pleas for additional punishment are remarkably similar.  These stories follow the same script: a feminist script for punishment.

"That is Enough Punishment: Situating Defunding the Police within Antiracist Sentencing Reform"

The title of this post is the title of this new paper available via SSRN authored by Jalila Jefferson-Bullock and Jelani Jefferson Exum. Here is its abstract:

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago.  One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls have led to this particular season of widespread protests and organized demands for change.  As the focus turns from necessary protest to tangible progress, what remains unanswered is how best to proceed.  Professor Ibram X. Kendi described antiracism as “a radical choice in the face of this history, requiring a radical reorientation of our consciousness.”  One such “radical choice” is defunding the police.

Although the long-held belief in police “super powers” is crumbling, the majority of Americans do not support wholesale defunding and instead advocate for specific reforms; 35% of participants in a 2020 Pew study recorded that the police use the correct amount of force in every situation, compared to 45% in 2016.  Likewise, the share of people who believe police treat racial and ethnic groups equally dropped from 47% in 2016 to 34% in 2020, and the share of those who thought the justice system should hold officers accountable when misconduct occurs rose to 44% in 2020, compared to 31% in 2016. A 2018 poll found that two-thirds of people in the United States support banning chokeholds.  Most Americans do support disciplining police misconduct and lessening protections against legal action.  Seventy-four percent of Americans believe that police violence against the public is a problem, and 42% believe it is a major problem. Nevertheless, only 25% of Americans endorse decreased spending on police forces. In many ways, polling reveals a public misunderstanding of what defunding the police actually means.  Polls indicate that people balk at the term “defund the police” but appear more open if directly asked if they support shifting money allocated to police toward specific social services.  This Article argues that discomfort with defunding the police is misplaced.

Understanding policing as a form of punishment clarifies how reforming policing — including defunding the police — fits within the broader, more widely accepted sentencing reforms that have taken place in recent years.  The Supreme Court has refused to recognize policing as punishment, and several scholars have commented on the Court’s failure to do so. Adding to this conversation, this Article asserts that policing is punishment and demonstrates that policing reform is rightly situated within discussions of overall sentencing reform.  Sentencing reform supported on both sides of the political aisle recognizes that jurisdictions have spent money on incarceration but have not actually accomplished punishment goals.  When resources are re-directed to support legitimate punitive goals better, then not only are resources saved but also systemic racism can be addressed.  As it stands, purposeless punishment only serves to support institutional bias.  The same is true for retaining the current system of policing.  Once one understands that the current policing model in the United States facilitates purposeless punishment, its only remaining plausible objective is to sustain a system of racial oppression.  To truly begin eradicating racism in policing, it is imperative to place policing reform in the broader context of sentencing reform and begin approaching all forms of punishment with an antiracist lens.

"Mass Incarceration Retards Racial Integration"

The title of this post is the title of this recent working paper authored by Peter Temin for the Institute for New Economic
Thinking.  Here is its abstract:

President Nixon replaced President Johnson’s War on Poverty with his War on Drugs in 1971.  This new drug war was expanded by President Reagan and others to create mass incarceration.  The United States currently has a higher percentage of its citizens incarcerated than any other industrial country.  Although Blacks are only 13 percent of the population, they are 40 percent of the incarcerated.  The literatures on the causes and effects of mass incarceration are largely distinct, and I combine them to show the effects of mass incarceration on racial integration.  Racial prejudice produced mass incarceration, and mass incarceration now retards racial integration.

Two sharp discussions of the inefficacy and inequities of the war on drugs

Today I saw two different types of commentary coming from two different authors saying in different ways the same fundamental resolute point: the war on drugs has been a failure full of injustices and we must dramatically change course.  Both pieces should be read in full, and I hope these snippets prompt clicks through:

First, be sure to check out Nora Volkow, director of the National Institute on Drug Abuse (NIDA), Health Affairs blog entry titled "Addiction Should Be Treated, Not Penalized." (Hat tip: Marijuana Moment).  Here are excerpts (links from original):

[Health] disparities are particularly stark in the field of substance use and substance use disorders, where entrenched punitive approaches have exacerbated stigma and made it hard to implement appropriate medical care. Abundant data show that Black people and other communities of color have been disproportionately harmed by decades of addressing drug use as a crime rather than as a matter of public health....

Although statistics vary by drug type, overall, White and Black people do not significantly differ in their use of drugs, yet the legal consequences they face are often very different. Even though they use cannabis at similar rates, for instance, Black people were nearly four times more likely to be arrested for cannabis possession than White people in 2018.  Of the 277,000 people imprisoned nationwide for a drug offense in 2013, more than half (56 percent) were African American or Latino even though together those groups accounted for about a quarter of the US population.

During the early years of the opioid crisis in this century, arrests for heroin greatly exceeded those for diverted prescription opioids, even though the latter — which were predominantly used by White people — were more widely misused.  It is well known that during the crack cocaine epidemic in the 1980s, much harsher penalties were imposed for crack (or freebase) cocaine, which had high rates of use in urban communities of color, than for powder cocaine, even though they are two forms of the same drug.  These are just a few examples of the kinds of racial discrimination that have long been associated with drug laws and their policing....

Drug use continues to be penalized, despite the fact that punishment does not ameliorate substance use disorders or related problems.  One analysis by the Pew Charitable Trusts found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.  

Imprisonment, whether for drug or other offenses, actually leads to much higher risk of drug overdose upon release. More than half of people in prison have an untreated substance use disorder, and illicit drug and medication use typically greatly increases following a period of imprisonment. 

Second, be sure to also read Nkechi Taifa, convener of the Justice Roundtable, commenting at the Brennan Center under the title "Race, Mass Incarceration, and the Disastrous War on Drugs."  Here is how the (relatively more optimistic) piece concludes (again links in original):

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing.  I sensed the beginning of this with the 2008 Second Chance Reentry bill and 2010 Fair Sentencing Act, which reduced the disparity between crack and powder cocaine.  I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment's prohibition against cruel and unusual punishment.  In 2013, I was delighted when Attorney General Eric Holder announced his Smart on Crime policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players.  The following year, I applauded President Obama’s executive clemency initiative to provide relief for many people serving inordinately lengthy mandatory-minimum sentences.  Despite its failure to become law, I celebrated the Sentencing Reform and Corrections Act of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018 First Step Act.  All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough.  We have experienced nearly five decades of destructive mass incarceration.  There must be an end to the racist policies and severe sentences the War on Drugs brought us.  We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds.  End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders.  Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences.  Make sentences retroactive where laws have changed.  Support categorical clemencies to rectify past injustices.

It is time for bold action.  We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

Noting how carceral craziness and foolhardy finality fixations result in cases like Tarahrick Terry's

As highlighted in this post following this past week's SCOTUS oral argument, the questions from the Justices strongly suggest that the Supreme Court will soon rule that Tarahrick Terry is not entitled to seek a resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  Over at SCOTUSblog, Ekow Yankah has this effective review of the Terry argument which spotlights a portion I found especially notable toward the end:

One dissonant note came late in the morning, when Justice Brett Kavanaugh embarked on an extended exchange with Mortara.  Rather than a sharp set of questions, Kavanaugh ruminated on, among other things, the history that led to the sentencing regime Congress sought to fix.  He recalled the 1986 death of college-basketball star Len Bias from a cocaine overdose that shocked the nation and brought cocaine use squarely into the spotlight.  Recalling that Bias was only a year older than him and that he looked up to him, Kavanaugh (himself an avid basketball player and coach) mused that Bias’ death had motivated congressional action to impose harsher penalties on cocaine use, noting only casually that Bias died after using powdered cocaine.  It was, to this observer, a cringe-worthy moment of naivete; to draw a clear path from the traumatizing death of Bias to harsher punishment of crack cocaine is to ignore a sea of racial politics.  Len Bias’s death did not lead Congress to hammer down on Wall Street bankers doing coke.

Yankaw is right to spotlight generally how ugly racial realities were largely ignored throughout the Terry argument.  But even more "cringe-worthy" has been the way Congress, the US Sentencing Commission, the Department of Justice and the courts have created and sustained crazy carceral approaches to drug offenses for many decades even as the illogic, inefficacy and injustice of lengthy federal prison sentences in response to drug issues have been so plainly evident.  Apologies for a bit of a rant, but what follows is actually a reserved accounting of what strikes me a stunningly ugly (and still continuing) example of systemic injustice. 

For starters, what basis did Congress have back in 1986 to think that harsh mandatory minimum prison sentences for any drugs (let alone for crack) would be a sound and sensible way to respond to either the overdose death of a basketball superstar or societal concerns about a new drug problem?  The history of alcohol Prohibition certainly is not a rousing tale of the efficacy of criminal justice responses to substance use, and racial disparities in other drug panics have marked US policies and practices for eons.  Moreover, not long before in 1970, as noted in this article, Congress repealed most drug mandatories with then-Texas Rep. GHW Bush saying doing so would result in "better justice and more appropriate sentences."  

Critically, the carceral craziness of the Anti-Drug Abuse Act of 1986 goes even further than Congress deciding to re-embrace federal mandatory minimum provision for drug offenses.  Congress in 1986 had the even crazier idea to tether its harsh prison mandatory minimums to precise drug quantities rather than to offense role or violent acts or any other sounder sentencing factors.  And Congress further decided that just five grams of crack cocaine — the weight of a single nickel — would be enough to trigger five mandatory years in federal prison (while a full pound of the same stuff in powder form would not).       

As I highlighted in this recent post, in 1991 the US Sentencing Commission wrote a lengthy report to Congress detailing how misguided and racially disparate all mandatory minimum provisions were in operation; in 1995, the USSC wrote another report documenting the extreme racial disparities resulting from the 100-1 crack/powder ratio.  I had the honor in 1995 to still be clerking for Second Circuit Judge Guido Calabresi who wrote at that time in United States v. Then, 56 F.3d 464 (2d Cir. 1995), that, if Congress failed to respond to the USSC's expert analysis, "equal protection challenges based on claims of discriminatory purpose might well lie" or the USSC's reports "might nonetheless serve to support a claim of irrationality." Id. at 468 (Calabresi, J., concurring).

Aggravatingly, Congress did not do anything to address the 100-1 ratio for 15 more years until the Fair Sentencing Act of 2010, during which time tens of thousands of disproportionately black persons received disproportionately severe statutory and guideline sentences for crack offenses.  Critically, the USSC, the DOJ, and the courts ought also be faulted for carceral craziness in this period: the USSC refused for over a decade to even try to change the crack guidelines while awaiting congressional action, the DOJ (under both Prez Clinton and Prez Bush) was generally opposition to any major sentencing reforms, and courts consistently rejected any and all challenges to this racially disparate and irrational sentencing structure. 

Interestingly, the Booker case merits mention in this history not because it happened to be a crack case, but because some federal judges started using their new post-Booker discretion to do better in crack cases and the USSC advanced some modest (but still meaningful) crack guideline amendments as a result.  But, tellingly, DOJ still largely opposed district judges going below the crack guidelines after Booker (which required SCOTUS to issue the important Kimbrough decision), and many district judges still readily and regularly sentenced within the severe 100-1 crack guidelines even after Booker and Kimbrough made clear that they had broad authority to effectuate the USSC's expert analysis that the crack guidelines produced racial disparities and generally recommended prison terms that were much "greater than necessary." 

Of course, in August 2010, we finally get the Fair Sentencing Act from Congress.  Notably, the FSA did not unwind the key carceral craziness of tethering harsh mandatory prison minimums to precise drug quantities, nor did it provide for treating crack and powder offenses similarly.  Rather the FSA simply says it now takes 28 grams grams of crack — the weight of five quarters — to trigger five mandatory years in federal prison (though a full pound of the same stuff in powder form sill will not).  The US Sentencing Commission amends the crack guidelines downward accordingly as instructed by the FSA, and thankfully the federal sentencing world gets just a little bit less carceral crazy going forward for some crack cases. 

But even as the carceral craziness recedes a bit after the FSA of 2010, foolhardy finality fixations kick into high gear.  Notably, as noted in this post, international human rights law generally provides that, when legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  But the Obama Justice Department argues in 2010 that federal law required that even crack defendants who had not yet been sentencing when the FSA was enacted still had to be subject to the 100-1 ratio for pre-FSA conduct even through everyone agreed that pre-FSA sentences for crack were unfair, excessive, ineffectual and produced extreme racial disparities.  The Supreme Court in the 2012 Dorsey case — by only a 5-4 margin — decides sentencing courts did not have to keep applying a misguided and suspect sentencing scheme in these pipeline cases.  But all the while the USSC, the DOJ and the courts all readily accept that nobody should get any retroactive benefit from the FSA statutory change simply because Congress did not say expressly that it wanted people still in prison still enduring the 100-1 ratio's carceral knee on their necks to have a chance to argue they should get to sooner breathe the air outside prison walls.           

Critically, as just suggested, retroactivity of lower crack sentences (or any other sentencing changes) in the federal system has never been automatic.  Persons in prison, even if permitted under applicable laws to get to court for resentencing, generally have to prove to a judge that public safety concerns and other equities weigh in favor of a lower sentence.  That is, for Tarahrick Terry and so many others, they are not actually arguing for resentencing, they are arguing that they should just have a chance to argue for discretionary resentencing.  In a law review article some years ago, "Re-Balancing Fitness, Fairness, and Finality for Sentences," I contend it ought to be a lot easier for a defendant to get access to court seeking resentencing because "the conceptual, policy, and practical reasons [that may justify] limiting review and reconsideration of final convictions are not nearly as compelling when only sentences are at issue."  I find it so frustrating discretionary resentencing for crack offenders remains so contested even when each and every federal policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive, ineffectual and produced extreme racial disparities.

Of course, Congress voted almost unanimously for the FIRST STEP Act, which is a huge bill designed to help reduce a lot of federal sentences and which included a provision making the Fair Sentencing Act retroactive.  But, given the SCOTUS argument in Terry, it appears that because Congress did not use just the precise kind of magic words in that statutory provision, the lowest level of all crack offenders are to be categorically excluded from securing even a chance to argue for resentencing.  Sigh.  Injustice must sometimes be one of those turtles going all the way down as carceral craziness and foolhardy finality fixations persist circa 2021.  There are some heartening indications that we all know we can and should be doing a lot better in federal sentencing and elsewhere, but Terry is perhaps a useful reminder that the myriad sentencing and racial injustices of the past are never dead, and they are not even past.

Prior recent related posts on Terry:

• Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act
• Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry
• Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio
• SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity 

"Prisons and jails will separate millions of mothers from their children in 2021"

The title of this post is the title of this notable, timely new briefing from the Prison Policy Initiative authored by Wanda Bertram and Wendy Sawyer.  Here is how it gets started (with links in original): 

This Mother’s Day — as the COVID-19 pandemic continues to put people behind bars at serious risk — nearly 150,000 incarcerated mothers will spend the day apart from their children.  Over half (58%) of all women in U.S. prisons are mothers, as are 80% of women in jails, including many who are incarcerated awaiting trial simply because they can’t afford bail.

Most of these women are incarcerated for non-violent offenses.  Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support.  And these numbers don’t cover the many women who will become mothers while locked up this year: An estimated 58,000 people every year are pregnant when they enter local jails or prisons.

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

• Fedeal prosecution: "Brainerd man sentenced to 4 years for Minneapolis police station fire during Floyd protests"
• Federal prosecution: "Edmonds man sentenced to prison for torching police cars during Seattle riot"
• Fedeal prosecution: "Moorhead man sentenced to 2 years in federal prison following Fargo riots"
• Fedeal prosecution: "Fargo man who stomped squad car during riot sentenced to probation"
• State prosecution: "Eric Christopher Ruffin [pled] guilty to third-degree arson [and] was sentenced to three years on probation."
• State prosecution: "Drunken rioter gets probation; judge counsels him ‘not to pick up the bottle’"

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive |

"Race-Based Remedies in Criminal Law"

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

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system.  Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety.  As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions.  Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge.  The apprehension is understandable.  Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies.  There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges.  Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms.  To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.

The Article finds reasons to be optimistic about how race-based remedies might fare within the criminal-system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders.  Within this unique context, the Article provides a template for a race-based approach that potentially survives an Equal Protection challenge.

"A Courts-Focused Research Agenda for the Department of Justice"

The title of this post is the title of this notable new Brennan Center report.  Here is its introduction:

Millions of individuals interact with the U.S. criminal and civil legal system every year. Many of them look to the courts to defend their rights and ensure fair outcomes — and all too often, courts are falling short.

As a candidate, President Biden committed to combatting mass incarceration, ending the criminalization of poverty, rooting out racial disparities, and refocusing our criminal and civil legal systems on the key principles of equality, equity, and justice. State and federal courts are critical to achieving these goals, but there is much that we don’t know about how they currently function and where reform is most acutely needed.

In order for the Department of Justice (DOJ) to effectively support states, local jurisdictions, tribal governments, territories, and the federal government in refashioning our courts into more just institutions, research and data are urgently required.

There must be an understanding not only of who is entering the court system, but why they are brought into it, and what their experiences illustrate about our vast system of local, state, and federal courts. For example, the Biden administration has emphasized its intention to end the practice of incarcerating people for their inability to pay court debt, yet we still know very little about how these and other predatory court practices function across the country. The Covid-19 pandemic prompted an unprecedented experiment with remote court proceedings in jurisdictions across the country, but we still know very little about how remote court impacts access to justice and the fairness of proceedings.

President Biden has also emphasized the importance of racial, ethnic, gender, and professional diversity on the bench — including nominating judges who bring diversity to the bench. But while the judiciary publishes diversity data about Article III judges, we lack basic information about the demographics or professional experience of many judges in state and Article I federal courts. These are just a few of the data and research gaps that make our courts problematically opaque.

Although just scratching the surface, we offer some recommendations for the Office of Justice Programs (OJP) and National Institute of Justice (NIJ) to collect additional data and perform research to better understand how our courts do or don’t work for millions of Americans, as well as setting forth a research agenda that could shed more light on how to improve our nation’s vast system of local, state, and federal courts.