Sentencing Law and Policy

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

• Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques" 
• Missouri completes execution after SCOTUS rejects final stay appeal 

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

"Locked Out 2022: Estimates of People Denied Voting Rights Due to a Felony Conviction"

The title of this post is the title of this new report released today by The Sentencing Project.  Here is the report's overview:

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era.  In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

This 2022 report updates and expands upon 20 years of work chronicling the scope and distribution of felony disenfranchisement in the United States (see Uggen, Larson, Shannon, and Pulido-Nava 2020; Uggen, Larson, and Shannon 2016; Uggen, Shannon, and Manza 2012; Manza and Uggen 2006; Uggen and Manza 2002).  As in 2020, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latinx populations impacted.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2022 election.

Among the report’s key findings:

• An estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined by 24 percent since 2016, as more states enacted policies to curtail this practice and state prison populations declined modestly. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.7 million in 2000, 5.4 million in 2004, 5.9 million in 2010, 6.1 million in 2016, and 5.2 million in 2020.

• One out of 50 adult citizens — 2 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Three out of four people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on probation or parole.

• In three states — Alabama, Mississippi, and Tennessee — more than 8 percent of the adult population, one of every 13 adults, is disenfranchised.

• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.

• One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. Among the adult African American population, 5.3 percent is disenfranchised compared to 1.5 percent of the adult non-African American population.  More than one in 10 African American adults is disenfranchised in eight states – Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia. 

• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 506,000 Latinx Americans or 1.7 percent of the voting eligible population are disenfranchised.  Approximately 1 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

New DPIC report: "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty"

This coming Thursday, Oklahoma is scheduled to execute Benjamin Cole for the 2002 murder of his infant daughter (though his lawyers have sought a stay from SCOTUS based on claims of incompetency).  Remarkably, Oklahoma has another 20+ executions scheduled for the next two years, with almost one execution scheduled for every month through 2024.  These plans appear to have prompted the folks at the Death Penalty Information Center to produce this big new report titled "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty."  Here is the text of the report's conclusion:

Oklahoma is at an inflection point in its administration of the death penalty.  The state can continue executing people affected by what many Oklahomans consider a broken system or implement reforms that have been proposed by bipartisan advocates for years.  A shift away from the death penalty may even be more aligned with Oklahomans’ views on the issue, as recent surveys have shown a decline in support for the death penalty.  In addition, more than half of Oklahomans surveyed in 2015 revealed they would support abolishing capital punishment if the state replaced the death penalty with the alternative sanction of life without parole, plus restitution.

Systemic issues in the state’s use of the death penalty affect all capital defendants. However, the impact is skewed based on the race of defendant and victim, and the effects are particularly harsh on defendants of color. People of color are more likely to be victims of police misconduct and violence; they are more likely to suffer from the effects of having all-white or nearly all-white juries; and they are at greater risk of being executed if they have intellectual disabilities.  Additionally, the higher rate of death sentencing for cases involving white victims illustrates the enhanced punishment for those accused of crimes against white people that has been evident since the heyday of lynchings. Despite documented problems with the administration of Oklahoma’s death penalty, courts are largely unwilling to rectify them, leaving few options for relief.  If Oklahoma is to establish a fair and humane system of justice, it is crucial to acknowledge and redress the lingering effects of Jim Crow and racial violence on the state’s administration of the death penalty.

US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

In an update to this post last week, I noted that the US Sentencing Commission had produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  That analysis explained where "senior administration officials" were getting the talking point that around 6500 people were going to benefit from President Joe Biden's decision to grant a blanket pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act"  That USSC accounting also led me to wonder if we might ever get "race and gender and age and criminal history information" regarding this now-pardoned population.

Excitingly, late yesterday the US Sentencing Commission issued this news advisory announcing that it had completed "additional analyses" of the pardoned population "providing additional information on demographics and geographic distribution."  The additional USSC analyses include race and gender data (but no age and criminal history data), and the biggest story in the new analyses seems to be that the pardoned population is comprised of more Whites (41.3%) and Hispanics (31.8%) than Blacks (23.6%).  This reality may be a bit surprising given that the ACLU has repeatedly documented that states have in recent decades arrested Blacks at nearly four times the rate as whites (see here and here).  But since most federal marijuana possession offenses are concentrated near the border or on federal property (like military bases and national parks), this racial distribution perhaps should not be all that surprising.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

"Race and Wrongful Convictions in the United States 2022"

The title of this post is the title of this lengthy new report from the National Registry of Exonerations.  Here is the start of its executive summary:

Black people are 13.6% of the American population but 53% of the 3,200 exonerations listed in the National Registry of Exonerations.  Judging from exonerations, innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.

We see this racial disparity, in varying degrees, for all major crime categories except white collar crime.  This report examines racial disparities in the three types of crime that produce the largest numbers of exonerations: murder, sexual assault, and drug crimes.

For both murder and sexual assault, there are preliminary investigative issues that increase the number of innocent Black suspects: for murder, the high homicide rate in the Black community; for rape, the difficulty of cross-racial eyewitness identification.  For both crimes, misconduct, discrimination and racism amplify these initial racial discrepancies.

For drug crimes, the preliminary sorting that increases the number of convictions of innocent Black suspects is racial profiling.  In addition, the Registry lists 17 “Group Exonerations” including 2,975 additional wrongfully convicted defendants, many of whom were deliberately framed and convicted of fabricated drug crimes in large-scale police scandals. The overwhelming majority are Black.

Rounding up some notable justice coverage and commentary from Law360's Access to Justice

I find a lot of Law360 coverage and commentary to be blogworthy, but I also find a lot of it behind a paywall.  Fortunately, the Law360 folks have the good sense to keep its Access to Justice section open access.  And that section has had a number of recent pieces that ought to be of interest to sentencing fans:

"Access To Justice Cases To Watch This Supreme Court Term"

"Racial Disparities In State Imprisonment Continue To Decline"

"Mich. Ruling Widens Sentencing Protections For Young Adults"

"Algorithms Have Potential To Reduce Sentencing Disparities"

"Are progressive chief prosecutors effective in reducing prison use and cumulative racial/ethnic disadvantage? Evidence from Florida"

The title of this post is the title of this new article recently published in the journal Criminology & Public Policy and authored by Ojmarrh Mitchell, Daniela Oramas Mora, Tracey L. Sticco and Lyndsay N. Boggess. Here is its abstract:

Research Summary

Progressive chief prosecutors, campaigning on platforms calling for reducing prison populations and racial/ethnic disparities, have been elected in numerous jurisdictions across the United States in recent years.  Yet, there is no empirical research that compares case outcomes between jurisdictions headed by progressive and traditional chief prosecutors.  In this research, we utilize a cumulative case outcome approach that tracks cases from arrest to disposition to examine whether cases prosecuted under progressive chief prosecutors receive less punitive sanctions and exhibit smaller racial/ethnic disparities.  We find that cases adjudicated in progressive jurisdictions are more likely to end without a felony conviction and less likely to result in a prison sentence.  Racial but not generally ethnic disadvantage is evident in case outcomes, and racial disparities are smaller in jurisdictions led by progressive chief prosecutors.

Policy Implications

The election of progressive prosecutors is a radical departure from earlier approaches aimed at controlling prison populations and mitigating racial disparities.  Instead of restricting the discretion of criminal justice actors, voters are relying on progressive, reformist prosecutors to use their enormous discretion in less punitive and more egalitarian fashions.  This research indicates that progressive chief prosecutors do, in fact, reduce prison use and racial disparities.

Council on Criminal Justice releases "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020"

Three years ago, as flagged in this post, the Council on Criminal Justice (CCJ) released a notable report detailing notable modern changes in the modern demographics of prison, jail, probation, and parole populations titled "Trends in Correctional Control by Race and Sex."  Today, CCJ has released another important data report looking a racial disparity data under the title "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020."  The full report is available at this link, and here is what's listed as "key findings" in the first few pages of the full report:

• Over the first two decades of the 21st century, the disparity in Black and White state imprisonment rates (the ratio of Black-to-White rates) fell 40%; in 2020, Black adults were imprisoned at 4.9 times the rate of White adults, down from 8.2 times in 2000.
  o The Black imprisonment rate fell faster than the White imprisonment rate (47% vs. 11%).
  o The number of Black people in prison decreased by 27%, while the number of White people in prison increased by 4%.

• Half of the disparity reduction occurred in the first five years of the 20-year period, as the rate of narrowing slowed in more recent years. In 2020, responses to the COVID19 pandemic led to an unprecedented 15% drop in state prison populations, but that historic decline did not result in a change in Black-White imprisonment disparities.

• Black-White disparities in state imprisonment rates fell across all four offense categories—violent, property, drug, and public order—with the largest decrease occurring for drug crimes. Disparity in drug imprisonment rates fell by 75%; that drop accounted for about half of the overall decrease in the Black-White imprisonment rate disparity.

• Black-White disparity in new court commitments to prison per arrest fell to near parity for property and drug crimes in 2019. Disparities in arrest rates per resident for these offense categories fell to about 2-to-1. Disparity in prison admission for
  technical violations per person on parole also fell. In combination, these results suggest that Black adults are overrepresented in prison admissions relative to White adults because they are arrested at higher population-based rates, not because their arrests are more likely to result in imprisonment.

• Racial disparity in violent crime imprisonment rates arose from racial differences in offending rates (as indicated by accounts of victims of violent crimes, most of which are intra-racial); admissions per arrest; and length of stay.

• The Black-White disparity in prison admission rates declined, while disparity in length of stay in prison increased. Disparity in admissions rates fell from 7.2 in 2000 to 3.2 in 2020. Expected length of stay in prison for Black adults increased from 2.2 years to 2.5 years, while for White adults it fell from 2 to 1.8 years. Despite these changes, racial differences in prison admissions rates accounted for nearly three quarters of the Black-White imprisonment rate disparity in 2020.

• In 2000, Black people on parole were more likely to be returned to prison for breaking the rules of their supervision (“technical violations”) than White people; by 2020 White people were more likely to be returned to prison for this reason. The changes in technical violation rates contributed to decreasing the disparity in total admissions.

• Racial disparities in imprisonment will persist without significant reductions in:
  o The disparity in rates of violent offending;
  o The disparity in prison time served; and/or,
  o The role of criminal history in sentencing and release decisions

"Racial Disparities in Lifer Parole Outcomes: The Hidden Role of Professional Evaluations"

The title of this post is the title of this new article recently published in the journal Law & Social Inquiry. The article was authored by Kathryne M. Young and Jessica Pearlman and here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these people will eventually be eligible for discretionary parole release.  Yet parole hearings are notoriously understudied.  With only a handful of exceptions, few researchers have considered the ways in which race shapes decision-makers’ perception of parole candidates.  We use a data set created from over seven hundred California lifer parole hearing transcripts to examine the factors that predict parole commissioners’ decisions.  We find significant racial disparities in outcomes, with Black parole candidates less likely to receive parole grants than white parole candidates, and test two possible indirect mechanisms.  First, we find that racial disparity is unassociated with differences in rehabilitative efforts of Black versus white parole candidates, suggesting that differential levels of self-rehabilitation are not responsible for the disparity.  Second, we test the hypothesis that racial disparity owes to commissioners’ reliance on other professionals’ determinations: psychological assessments, behavioral judgments, and prosecutors’ recommendations.  We find that reliance on these evaluations accounts for a significant portion of the observed racial disparity. These results suggest that inclusion of professional assessments is not race-neutral and may create a veneer of objectivity that masks racial inequality.

"Lemonade: A Racial Justice Reframing of The Roberts Court’s Criminal Jurisprudence"

The title of this post is the title of this recent article authored by Daniel Harawa available via SSRN. Here is its abstract:

The saying goes, when life gives you lemons, make lemonade.  When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana.  On their face, the cases teach that history matters. Government actors who discriminate must be held to account.  Accepted institutional practices can no longer perpetuate racism. And courts must assume an active role in addressing the racism endemic to the criminal legal system.  At least tonally, these cases are a marked shift for the notoriously post-racial Roberts Court

But if you dig a little deeper, it is clear that the cases have severe shortcomings.  The cases reflect that the Court acknowledges only the most egregious examples of racism, and it fails to see the invidious ways race taints the criminal legal system.  The cases also demonstrate the Court’s failure to connect past racial practices with present racial disparities, a failure that in turn paints a false picture of discontinuity of the past from the present.  When viewed critically, these seemingly race-aware cases fall neatly in line with the post-racial critiques of the Roberts Court. From a racial justice perspective, the cases could be viewed as lemons.

Even so, this Article attempts to make lemonade. The Article shifts the narrative about the Court’s criminal jurisprudence by arguing that these recent cases can be helpful tools in the fight for racial justice.  This Article asserts that the cases can be deployed not only to make specific antiracist legal arguments, but also to push for policy changes and to encourage more open discussions about racism in the criminal legal system.  In the end, the Article urges a reclaiming of the case law to help unwind the corrosive relationship between race, crime, and punishment in America.  This intervention is necessary now, for the millions of Black and Brown people shuffled through the system each year. 

US organizations file complaint at United Nations stating LWOP and other extreme prison terms "are cruel in violation of the international prohibition on torture"

As reported in this new Guardian piece, headlined "US civil rights groups file complaint against ‘death by incarceration’ to UN," a coalition of organizations today filed a notable broadside against all extreme prison terms in the US.  Here are the basics:

A coalition of civil and human rights organizations on Thursday filed a complaint urging United Nations special rapporteurs to declare the United States’ longstanding practice of subjecting people to life sentences, including without possible release, “cruel, racially discriminatory” and “an arbitrary deprivation of liberty” that violates incarcerated people’s rights.

They argued that “death by incarceration”— a term describing life sentences without parole coined by [Terrell] Carter and other members of the Right to Redemption Committee, a group of incarcerated people seeking the abolition of the practice — amounted to torture.  In their complaint, the civil rights organizations asked the international watchdogs to pressure the United States, who leads the world in sentencing people to life imprisonment, to abolish the extreme practice altogether.  They proposed instead to impose maximum sentencing laws that would eliminate the practice of “virtual life” sentences — those longer than a person’s remaining years of life expectancy, often more than 50 years....

Dozens of testimonies from incarcerated people sentenced to life detail the horrific toll so-called “death by incarceration” has not just on their physical, mental and emotional wellbeing but also the lasting impact separation has on their family members.  Carlos Ruiz Paz, who is serving a life sentence in California, wrote in a testimonial that a life sentence without parole signaled a person was “irreparably damaged without hope of redemption”, adding: “Extreme sentences affect the kids who grow up without us and the parents that will die without us at their side.”

The complaint noted that the United States’ use of virtual life sentences increased exponentially since the 1970s, particularly after the supreme court abolished the death penalty in 1972, prompting states to strengthen life sentencing laws for offenders.  Even after the supreme court reversed course in 1976, extreme sentencing practices continued.  By the 1980s and 90s, as the federal government incentivized states to impose harsher sentencing practices in an effort to curtail perceived rises in crime, more and more people were imprisoned for longer.

The toll of that suffering has disproportionately upended the lives of Black and brown people who have been subjected to over-policing throughout time, exposing them to the US carceral system and led to escalating mass incarceration.  Organizers argue that that violates international human rights law prohibiting racial discrimination. “This systemic deprivation of resources, including education, healthcare and other social support and services, is coupled with the entry of more police and prisons in these communities and exposure to the criminal legal system,” the complaint noted.

The US is the only country that sentences children under 18 to life without parole, a practice that the United Nations has already singled out. And the US accounted for more than 80% of people worldwide serving life sentences without parole.

The full complaint is available at this link, and it runs 160 pages in total (though 3/4 of the document is comprised of an Appendix with testimonials from persons serving extreme sentences). Here is a paragraph from the complaint's introduction:

The United States’ use of DBI sentences violates a range of international human rights.  First, the disproportionate imposition of DBI sentences on racial minorities, in particular Black and Latinx people, violates the prohibition against racial discrimination.  Second, by arbitrarily and permanently sentencing individuals to prison terms that result in their premature death, DBI sentences violate individuals’ right to life.  Third, as recognized by numerous international human rights bodies, by depriving individuals of their right to hope and to rehabilitation, DBI sentences violate the international prohibition against torture and cruel, inhuman, and degrading treatment.  The devastating consequences on an individual’s right to family life further exacerbate the cruelty of DBI sentences.  Finally, the failure of DBI sentences to serve any legitimate purpose further demonstrates that such sentences are an impermissibly arbitrary deprivation of liberty.  To comply with international human rights standards, the United States must abolish DBI and restore incarcerated individuals’ right to hope.

"Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018"

The title of this post is the title of this recent article published in the Saint Louis University Law Journal authored by Jelani Jefferson Exum and David Niven.  Here is part of its abstract:

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders.  It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks.  This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty.  However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty.  Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent.  This is not simply a failure to recognize the value of Black lives — as the Black Lives Matter movement exposes — but a reflection of the societal view that Blackness actually reduces the value and importance of all things — from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death.  When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.  This data shows how pervasive race is in death penalty outcomes.  In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less.  The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature.  The details differ from case to case, but across all those thousands of cases the race of victim disparity persists.  The math is straightforward.  Indeed, the odds against the patterns seen here — emerging by chance — are truly astronomical.  The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain.  When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty.  Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach.  We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just.  To do otherwise is to perpetuate a system where Black lives matter less.

New Sentencing Project report highlights court diversion as a means to reduce juvenile justice disparities

The Sentencing Project today released a big new report authored by Richard Mendel titled "Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice."  Here are parts of the report's executive summary:

Diverting youth from juvenile court involvement should be a central focus in efforts to reduce racial and ethnic disparities and improve outcomes in our nation’s youth justice systems.

Clear evidence shows that getting arrested in adolescence or having a delinquency case filed in juvenile court damages young people’s futures and increases their subsequent involvement in the justice system.  Compared with youth who are diverted, youth who are arrested and formally petitioned in court have far higher likelihood of subsequent arrests and school failure.  Pre-arrest and pre-court diversion can avert these bad outcomes.

Research shows that Black youth are far more likely to be arrested than their white peers and far less likely to be diverted from court following arrest.  Other youth of color — including Latinx youth, Tribal youth, and Asian/Pacific Islander youth — are also less likely than their white peers to be diverted.  The lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.

Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice....

For most youth, diversion is more effective and developmentally appropriate than court.  Compelling research finds that formal involvement in the justice system tends to undermine rather than enhance public safety and to reduce young people’s future success....

Diversion is vastly underutilized in the United States.  Of the youth referred to juvenile or family courts for delinquency each year, just 7% are accused of serious violent offenses.  Therefore, a large majority of youth accused of delinquency should be diverted rather than arrested and formally processed in a juvenile court.  Yet the use of diversion remains limited....

The diversion stage of the juvenile court process should be a top priority for youth justice reform.  Advocates should push for and system leaders must take aggressive action to address racial and ethnic disparities in diversion.  Combined, reforms to expand and improve the use of diversion offer perhaps the most important and promising avenue currently available to reduce disparities and to improve youth justice systems nationwide.

"Racial equity in eligibility for a clean slate under automatic criminal record relief laws"

The title of this post is the title of this new article published in Law & Society Review authored Alyssa C. Mooney, Alissa Skog and Amy E. Lerman. Here is its abstract:

States have begun to pass legislation to provide automatic relief for eligible criminal records, potentially reducing the lifelong collateral consequences of criminal justice involvement.  Yet numerous historical examples suggest that racially neutral policies can have profoundly disparate effects across racial groups.  In the case of criminal record relief, racial equity in eligibility for a clean slate has not yet been examined.  We find that in California, one in five people with convictions met criteria for full conviction relief under the state's automatic relief laws.  Yet the share of Black Americans eligible for relief was lower than White Americans, reproducing racial disparities in criminal records.

We identify two policy amendments that would reduce the share of Black men in California with convictions on their criminal records from 22% to 9%, thereby narrowing the difference compared to White men from 15 to seven percentage points.  Put another way, an additional one in seven Black men currently has a conviction record, compared to their White counterparts.  This would decline to an additional one in 14 if both hypothetical policy amendments were incorporated.  We close with discussion of criminal history data quality limitations, which pose a second key challenge to equitable implementation of automatic criminal record relief reforms nationwide.

Latest "Time-in-Cell" report estimates that, as of July 2021, "between 41,000 and 48,000 people were held in isolation in U.S. prison cells"

This Guardian article, headlined "Nearly 50,000 people held in solitary confinement in US, report says," reports on the latest version of the important work done by Correctional Leaders Association and the Arthur Liman Center for Public Interest Law at Yale Law School to estimate the number of people held in solitary confinement in the United States.  Here is part of the press reporting:

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.“In the 1980s people promoted solitary confinement as a way to deal with violence in prisons,” said Judith Resnik, Yale’s Arthur Liman professor of law. “It is now seen as a problem itself that needs to be solved.”

California, a state with a dark history of abusive solitary confinement, is currently debating new legislation. The California Mandela Act would require every custodial institution in the state to impose strict rules and reporting, and would ban solitary for pregnant women, people under 26 or over 59, and those with mental or physical disabilities.

Last year New York state passed similar legislation, joining a growing list. The Yale study finds that three states – Delaware, North Dakota and Vermont – reported having no inmates in such confinement in 2021, and two other states said they had fewer than 10 people.

Despite such optimistic signs, restrictive housing continues to inflict untold suffering on thousands of men and women. 

This press release about the report provides some more details and context:

Time-In-Cell: A 2021 Snapshot of Restrictive Housing estimates that, as of July 2021, between 41,000 and 48,000 people were held in isolation in U.S. prison cells. The report defines solitary confinement as 22 hours or more on average a day for 15 days or more. 

The report’s co-authors have worked together for a decade to generate this data, producing the only longitudinal, nationwide database documenting the reported use of solitary confinement in prisons in the United States. 

According to the most recent study, three states reported holding no one in isolation in July 2021, two other states reported fewer than 10 people in solitary, and 10 states reported not using solitary in any of their women’s prisons. In contrast, in 2014, every jurisdiction reported using solitary confinement. That year, an estimated 80,000 to 100,000 people were in solitary in prisons throughout the United States.....

Time-in-Cell also examined the demographics of people held in isolation. The report found that solitary confinement continues to be used for people whom reporting jurisdictions define as having serious mental illness. Moreover, the report found that the number of Black women held in solitary was higher than the number of white women.

The full report includes the numbers, duration, and conditions of people in solitary confinement and the changes underway.

"The Fallacy of Systemic Racism in the American Criminal Justice System"

The title of this post is the title of this new paper authored by Paul Larkin and GianCarlo Canaparo now available via SSRN. Here is its abstract:

Critics of the criminal justice system have repeatedly charged it with systemic racism.  It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called progressive prosecutors to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement.  Yet, few people have defined what they mean by that term.  This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition.  None stands up to scrutiny.

One argument is that the American citizens who run our many institutions are motivated by racial animus.  But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it.  Another argument says that the overtly racist beliefs and practices of the past have created lingering racist effects, but this argument cherry-picks historical facts (when it does not ignore them altogether) and fails to grapple with the country’s historic and ongoing efforts to eliminate racial discrimination. It also assumes a causal relationship between past discrimination and present disparities that is unsupported and often contradicted by the evidence.  Yet another argument relies psychological research to claim that white Americans are animated by a subconscious racial animus.  That research, however, has been debunked.  Still another argument says that the criminal justice system is systemically racist because it has disparate effects across racial groups, but this argument looks only at the offenders’ side of the criminal justice system and fails to consider the effect of the criminal justice system on victims.

Proponents of the systemic racism theory often proffer “solutions” to it.  This Article, and its companion, which will be published in the same Volume, examines those too and finds that many would, in fact, harm the very people they aim to help.

This Article is part one of two and focuses on the claim of systemic racism in criminal justice system generally.  The second Article focuses on the War on Drugs in particular.  The bottom line of both is this: the claim of systemic racism in the criminal justice system and in the War on Drugs is unjustified and should be rejected.

"McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride"

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

Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality.  Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely.  Powell struggled, then, with an apparent tension between moral conviction and purported legal command — a tension that Robert Cover called a “moral-formal dilemma.”  Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts.  These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable.  And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold.  Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era.  But Powell was not a positivist.  Indeed, he was not even a death-penalty abolitionist — at least not in the way we would normally understand that term.  What, then, accounted for Powell pursuing such a remarkably similar — and similarly shoddy — moral, prudential, and jurisprudential course?  In this essay, I dissect McCleskey v. Kemp.  I argue that amoral positivism cannot explain the opinion.  To understand Powell’s motivation, we must dig deeply into his biography.  There we discover his abiding principled commitment to a particular brand of anti-positive hubris.  Powell was a proud institutionalist — a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders.  I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law.  Perhaps surprisingly, this judge is a type of positivist — a skeptical positivist.

"Sex Exceptionalism in Criminal Law"

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

Sex crimes are the worst crimes.  People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.  Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions.  This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate.  However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law.  Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance — an account that undergirds contemporary calls for broader criminal regulations and higher sentences.  In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy.  Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity.  Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional.  Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy.  Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation.  Sex dazzles theorists of all types.  For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones.  Critics of mass incarceration selectively abandon their principled stance against expanding the penal state.  Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.

Recapping some notable Senate hearings on prisons and pot

Yesterday saw two notable hearing on Capitol Hill on criminal justice concerns, and here is some press coverage providing a partial summary of some of what transpired:

From the AP, "Prisons chief deflects blame for failures, angering senators":

With just days left in his tenure, the embattled director of the federal prison system faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.

Bureau of Prisons Director Michael Carvajal, testifying before the Senate’s Permanent Subcommittee on Investigations, insisted he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.

Carvajal, who resigned in January and is set to be replaced next week by Oregon’s state prison director Colette Peters, blamed the size and structure of the Bureau of Prisons for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the agency’s 122 facilities.

From Courthouse News Service, "Marijuana decriminalization takes center stage at Senate hearing":

[Senator Cory] Booker, chairman of the subcommittee and the only Black senator on the Senate Judiciary Committee, said that the federal criminalization of cannabis has “miserably failed” and has led to a “festering injustice” of selectively enforced drug laws disproportionately targeting Black and brown communities.  Nationally, according to a 2020 report by the ACLU, a Black person is nearly four times more likely to be arrested for possession of marijuana than a white person, despite the fact that marijuana use is equally common among racial groups. “Cannabis laws are unevenly enforced and devastate the lives of those most vulnerable,” Booker said during the Tuesday hearing....

Republican Senator Tom Cotton of Missouri hit out against the legislation, alleging it “would wipe clean the criminal records of illegal alien traffickers.”  “When these criminals trafficked marijuana, they broke the law. Whether some find that law unfashionable or even unfair, what they did was illegal,” Cotton said.

Weldon Angelos, who was sentenced to 55 years in prison for possessing several pounds of marijuana as well as a firearm and was later pardoned by former President Donald Trump, told the committee that expungement is a critical part of the legislation in order to address what he sees as a racially motivated ban on marijuana.  “Each arrest, prosecution, conviction and sentence makes the world a little bit smaller for those bearing the modern scarlet letter,” Angelos said, referring to what it’s like to live with a drug conviction....

Edward Jackson, chief of the Annapolis Police Department, testified in support of the bill, saying “there is nothing inherently violent” about cannabis.  Jackson asserted that decriminalization would both improve community trust in police and allow officers to focus on higher priority and violent crimes.  “I have spent far too much time arresting people for selling and possessing cannabis,” Jackson said.

Spotlighting the "unheard-of decline in Black incarceration"

Keith Humphreys and Ekow Yankah have this notable new Chicago Tribune commentary headlined "The unheard-of decline in Black incarceration." This piece should be read in full, and here are excerpts:

Two years after George Floyd’s murder, protest-filled streets and countless invocations of a “racial reckoning,” public backlash and boredom have led many people to despair that the criminal justice system will never change.  But that dispiriting illusion is false, maybe even dangerous.  After generations of soul-crushing mass incarceration, African Americans have cause for hope: The Black imprisonment rate is at a 33-year low, having fallen to about half its level of a generation ago. But an inadvertent collaboration of ideological adversaries makes the decline of Black incarceration unspeakable.

On the one hand, the good news is hidden by racism. The narrative of inherent Black violence and immorality has been used to terrify white people and justify the oppression of Black people for centuries. As a Media Matters study demonstrated, if a criminal suspect is Black, the case is more likely to be covered on television news. Social media platforms greatly magnify the distortion. Within the narrative of inherent Black criminality, the decline in Black incarceration seems an impossibility: Black people must be in prison because that is where they belong. And even the racists who are aware of the decline in Black imprisonment may decide to keep silent — the truth is less important than the social or political gain offered by continual whispers of the Black boogeyman.

Anti-racist advocates oppose this narrative, emphasizing instead the structural forces that use fear of Black Americans to feed the fire of mass incarceration. But anti-racists may share racists’ unawareness or discomfort with declining Black incarceration. Black hopes have been dashed too many times to trust a change in their oppressor’s character. Other anti-racists are aware of the change but have fears of acknowledging it. White concern for racial justice has a history of evaporating. Two years after police murdered George Floyd, it is disheartening to see how quickly earnest proclamations of a “racial reckoning” withered into a commitment to abolish a pancake mix logo.

To be sure, the disproportionate incarceration of Black Americans remains a national tragedy that cannot be consigned to history if white people become complacent. Reformers understandably fear that focusing on the decline in Black incarceration (or positive comparison with white people) will further slow the dismantling of a system that still destroys countless lives. Still, assuming American racism is intractable creates a narrative that also cannot account for the decline in Black imprisonment.

Despite their competing premises, the racist and anti-racist narratives accidentally reinforce each other. They share a code of silence about Black de-incarceration that misleads Americans about the current racial realities of mass incarceration. In the absence of corrective information from journalists and activists, most people assume incorrectly that prisons continue to gobble up the lives of an increasing number of African Americans.

No matter our politics, we should care about what is true — the Black imprisonment rate has been dropping for a generation.  Hundreds of thousands of African Americans who would have been behind bars are now free.  Callous actors will claim this is too many, and anti-racists will argue it’s too few.  But would anyone argue with a straight face that such a dramatic change in the fate of hundreds of thousands of people warrants no discussion at all?...

In a country where so many — particularly people of color — long to see images of Black excellence celebrated, stories of Black progress should be highlighted rather than buried. Without ever forgetting the work still to be done, Americans of all races should be told of the progress that has and can be won.

I am always glad to see important data about modern incarceration emphasized, though I think op-eds could be written about all sorts of data realities going largely ignored or being misunderstood in many era.  There was precious little public discourse about mass increases in US incarceration for decades, and still very few talk about the remarkable increases and decreases in federal incarceration (and caseloads) over the last 25 years.  Though there is often discourse around private prisons, relatively few highlight what a small part they play in the national incarceration map.  Demographics such as gender and age and class (often combining with racial dynamics) can vary dramatically in incarcerated populations depending on crimes and jurisdictions, and dynamic recent modern changes in urban and rural incarceration rates have also often been overlooked or underexamined.  And, of course, data lags and other factors make it hard to even know how profoundly the COVID pandemic has reshaped our incarceration levels or whether any changes brought by COVID may prove enduring.

Put slightly differently, in this context, I do not see all that many thought-out "narratives" seeking to hide or obscure key data.  Instead, I see many advocates and media with relatively little interest in data combining with a general paucity of clear and effective data resources.  That said, given the considerable attention given to racial issues in broader criminal justice narratives and elsewhere in policy debates, I am still eager to praise Professors Humphreys and Yankah for this important commentary.  But, for me, it is just one small part of a much bigger story of political rhetoric often having little interest in complicated policy data.

A few of many older and newer related prior posts:

• Notable data on racial and gender dynamics of recent changes in incarceration rates (from 2016)
• Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data (from 2016)
• "Racial Disparity in U.S. Imprisonment Across States and over Time" (from 2017)
• Looking at the changing demographics of modern mass incarceration (from 2017)
• Examining gender realities and disparities in modern federal sentencing (from 2018)
• "Mass Incarceration: New Jim Crow, Class War, or Both?" (from 2018)
• Council on Criminal Justice releases new report on "Trends in Correctional Control by Race and Sex"  (from 2019)
• "A Comparison of the Female and Male Racial Disparities in Imprisonment" (from 2020)
• "The Color of Justice: Racial and Ethnic Disparity in State Prisons" (from 2021)
• New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls (from 2022)

Notable debate over access to sentencing data as Ohio builds out new sentencing data platform

In a few posts over the last few years (linked below), I have flagged the work of some Ohio jurists and others in the development of a statewide sentencing database.  I have had the honor of playing a small role in this work, and I have found fascinating many of the challenges and debates surrounding efforts to build out the Ohio Sentencing Data Platform.  One big lurking issue all along is now spotlighted by this new local article headlined "Statewide judges’ group wants sentencing data collected under proposed database kept secret."  Here are the excerpts from a lengthy article worth reading in full: 

A group that represents Ohio’s common pleas court judges does not want the public to see data that would be collected under a proposed statewide sentencing database for fears it could be cherry-picked and lead to criticism of the courts.  The head of the Ohio Common Pleas Judges’ Association wrote in a letter to the Ohio Supreme Court’s sentencing commission last month that judges recognize the value in the creation of a database for their own use.

Judges, however, are concerned that attorneys, journalists and other organizations could selectively pull data from the database to use “as a basis to critique imposed sentences and advocate for an overhaul to Ohio’s sentencing statutes.”  “In short, the OCPJA has significant concerns that broad public accessibility to the data would negatively impact the independence of the judiciary and interfere with its discretion in sentencing decisions,” the group’s president, Morrow County Common Pleas Court Robert Hickson, wrote.

The letter urged the seven justices to scrap proposed changes to the rules of superintendence that govern the state’s courts.  That would allow the court to run the project through the sentencing commission and come up with new proposals. In the alternative, state lawmakers should pass legislation mandating the data be exempt from Ohio’s public record laws, the letter said.... Hickson wrote that the letter represents the “unanimous position” of the group’s board.  Cuyahoga County Common Pleas Court Administrative Judge Brendan Sheehan is the group’s first vice president....

Sheehan’s colleague on the bench and predecessor as administrative judge wrote a letter of his own to the Ohio Supreme Court justices in which he said the views of the state judges’ group “cannot be farther from my own.” “In my opinion, the fears and skepticism expressed in the OCPJA letter are unfounded,” Judge John J. Russo wrote.  Russo, who was elected in 2006 and served as administrative judge from 2014 to 2020, told cleveland.com and The Plain Dealer that keeping the data secret and available only to the judges was akin to creating a “secret club” and would only harm the public’s confidence in the justice system more than making it public....

Russo also said that the letter by the judges’ group does not reflect the stance of the majority of the Cuyahoga County Common Pleas Court.  The Ohio Public Defender’s Office, Ohio Bar Association, Black Lives Matter and Common Cause Ohio all urged the commission to make the data available to the public.

The leader of the Ohio Prosecuting Attorney Association expressed a similar concern that the data would not paint a complete picture of all of the factors that go into each sentencing decision, and it would be open to manipulation.  While the group stopped short of calling for the data to remain hidden from the public, it did challenge that the legislature would have to create the commission, rather than the court.

The letters are in response to the Ohio Supreme Court’s sentencing commission’s call for public comment on proposed rule changes that would create a uniform sentencing entry, a lengthy document that judges would fill out after each sentencing hearing that articulates why judges imposed each sentence.  Each county’s common pleas court uses its own system to document the sentences judges there hand down, and they vary widely.  Some courts in small, rural counties still use handwritten sentencing documents, the Supreme Court said in a 2021 article published in the court’s news letter.

The commission would take data from the document and enter it into a database kept by the court that would give those who can access it the ability to see what the average sentence each person convicted of a particular crime received in each county’s common pleas court.  The sentencing commission hopes that creating a central database for the entire state that is populated by a single, uniform document that each judge fills out will make it easier for the Ohio Department of Rehabilitation and Correction.  It would allow the prison system to keep track of the sentences each inmate is serving and prevent trial court judges from committing errors during sentencing that appellate courts would later overturn....

Ohio Supreme Court Justice Michael Donnelly, a former judge in Cuyahoga County who served on the bench alongside Sheehan and Russo, told cleveland.com and The Plain Dealer that the database will help judges make sure they’re doling out similar sentences.  “That’s not just a good idea. That’s what the law mandates now,” Donnelly said. “It’s just that, how do you do that with the lack of information and the lack of data that we have?”

Donnelly also said that the public has a right to know how their courts are operating and that he believes the data should be made public. “We all serve at the pleasure of the public,” Donnelly said of judges in state court. “Everything else about our decisions is reviewable. Why should the most important decision we make as judges, whether to incarcerate someone, be any different than any other decision we make in this system of checks and balances?”

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 

 

UPDATE:  Cleveland.com has published this notable new opinion piece authored by Judge Ronald B. Adrine under the headline "Ohio’s Black judges support public release of criminal-sentencing database information." Here are excerpts:

The Ohio Black Judges Association Inc. (OBJA) voices its strong support for the Supreme Court of Ohio’s plan to allow public access to a proposed criminal sentencing database compiled by, among other things, race, as referenced in a recent article which appeared in The Plain Dealer.  Regrettably, our support puts us at odds with the Ohio Common Pleas Judges Association, which opposes public access to the database....

Our members across the state are acutely aware of the fact that the lack of data impedes legitimate inquiry into the degree to which racial justice is, or is not, a reality in Ohio.  At minimum, the existence of an open-access criminal sentencing database will sensitize all judges who make sentencing decisions to the potential for implicit bias, where it exists, and to reassure them of their positive practices, where it does not!

The position taken by the Common Pleas Judges Association calls for worst-case speculation concerning the occasional misuse of the database, while overlooking the overwhelming benefits to be realized in the majority of situations where the database is accessed.  Aggressively promoting viable efforts to increase the public’s confidence in our courts and to seek justice system accountability for all are OBJA’s primary motivators for supporting public access to the database.

We would like to assume that the vast majority of the members of the Ohio Common Pleas Judges Association have nothing to fear from public access to their sentencing practices.  If that assumption is incorrect, then the case for creating and maintaining the database is made even stronger.

There may be legitimate reasons for racial or other disparities that have nothing to do with bias.  If that is the case, having the database will assist in identifying them. By the same token, if the sentencing practices of individual judges suggest the need for practice adjustments, then that fact should be brought to the attention of those judges and the public should be able to monitor their progress in eliminating any explicit or implicit bias uncovered.

"Carceral Intent"

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

For decades, scholars across disciplines have examined the stark injustice of American carceralism.  Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate.  These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement.  This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement.

This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history.  The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent.  Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence.  Critical race theorists have long critiqued the intent-focused anti-discrimination doctrine as incapable of remedying structural racism and inequities.  The same can be said of the doctrine of incarceration.  The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features.  A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection.

Furman at 50: some recent notable coverage

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half century and I have not decided to create a series of "Furman at 50" posts.  Unsurprisingly, I am not the only one to note the Furman milestone, and here is a round-up of some recent coverage and commentary I have seen from various sources:

From the Dalton Daily Citizen, "50 years after SCOTUS ruled death penalty cruel and unusual, race factors heavily in executions"

From the Death Penalty Information Center, "DPIC Analysis Finds Prosecutorial Misconduct Implicated in More than 550 Death Penalty Reversals or Exonerations"

From The Marshall Project, "The Supreme Court Let The Death Penalty Flourish.  Now Americans are Ending It Themselves."

From Slate, "Fifty Years Ago, the Supreme Court Tried to Reduce Racial Bias in the Death Penalty. Did It Work?"

From UPI, "50 years after Furman ruling, death penalty may come down to states, experts say"

From The Washington Post, "Death penalty’s 50-year rise and fall since Supreme Court struck it down"

Related prior posts:

• Furman at 50: so much and so little
• Furman at 50: DPIC provides a census of nearly 10,000 death sentences

Does commitment to equal justice mean AG Garland must or must not seek the death penalty for racist Buffalo mass murderer?

The question in the title of this post is prompted by this new Washington Post article, headlined "Garland weighs racial equity as he considers death penalty in Buffalo."  Here are excerpts from a long article:

The Biden administration’s pledge to pursue racial equity in the criminal justice system is facing a crucial test: whether federal prosecutors will seek the death penalty for the self-avowed white supremacist charged with slaughtering 10 Black people in a Buffalo grocery store in May.

Some survivors and family members of those killed told Attorney General Merrick Garland during a private meeting in June that they are supportive of bringing a capital case against the 18-year-old suspect, Payton Gendron, according to people involved in the discussion.  Their stance conflicts with the long-standing position of civil rights advocates, who have generally opposed the death penalty out of concerns it is unjust and disproportionately used against racial minorities....

Garland, under pressure from civil rights groups, issued a moratorium last summer on federal executions, after the administration of President Donald Trump carried out 13 in the final six months of his presidency.  As heinous as the Buffalo killings were, Black civil rights leaders say, seeking to execute the gunman would represent a setback in their efforts to abolish capital punishment.  “The reality for us is that the system is too often infused with racial bias. That doesn’t change because someone who is White, and who perpetrated violence against Black people, is put to death,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights.

President Biden opposed the death penalty during his 2020 campaign, but he has not pushed forcefully for a blanket federal ban on executions since taking office.  His administration is under pressure to do more to confront rising white supremacy, a spike in hate crimes and a wave of gun violence.  While Garland’s moratorium does not ban prosecutors from seeking the death penalty, the Justice Department has not filed a notice to seek capital punishment under his leadership, officials said....

Federal prosecutors have charged Gendron with 26 hate crime counts.  But it is an additional gun-related charge that carries the potential penalty of death. He also faces state-level first-degree murder and hate crimes charges in New York, which does not allow state-sponsored executions....

Making matters more complex, some of the attorneys representing the families are advocates who vocally oppose the death penalty, including Ben Crump, a prominent civil rights attorney, and Terrence M. Connors, a Buffalo trial lawyer. So do some of Garland’s top deputies, including Associate Attorney General Vanita Gupta, who joined him in Buffalo....

Garland gained national acclaim in the 1990s for helping lead the Justice Department’s successful capital conviction of Oklahoma City bomber Timothy McVeigh, who was put to death in 2001.  During his confirmation hearing last year, Garland said he stands by the outcome of that case but has since developed reservations over the death penalty.

At the hearing, Sen. Tom Cotton (R-Ark.) cited the case of Dylann Roof — a White man sentenced to death for fatally shooting nine Black parishioners at a church in Charleston, S.C., in 2015 — and asked whether Garland would pursue capital punishment in a similar case. Garland responded that it would depend on the Biden administration’s policy.

The Justice Department has continued to back Roof’s death sentence, which was upheld by a federal appellate court last summer.  The department also is seeking the death penalty for Robert Bowers, a White man accused of killing 11 people and wounding six in an antisemitic attack at the Tree of Life synagogue in Pittsburgh in 2018....

In opposing the death penalty, some opponents cite cases in which convicts on death row are exonerated in light of new evidence. But legal experts said the Buffalo case appears to lacks ambiguity: The suspected gunman allegedly wrote a 180-page screed denouncing Black people, shared plans for the attack on social media and live-streamed some of the shooting.

“Congress passed the law allowing the federal death penalty for the most heinous of crimes. If the Buffalo massacre doesn’t qualify, then it’s hard to see what would,” Cotton said in a statement. “Merrick Garland and President Biden ought to put aside their personal feelings, enforce the law, and focus on securing justice for the victims of this horrific crime.”

Garland has not been completely clear about his intent in pausing executions, said Nathan S. Williams, a former assistant U.S. attorney who helped prosecute Roof.  Though Garland cited technical issues concerning lethal injection in his memo announcing the moratorium, he also referenced fundamental unease about the death penalty’s “disparate impact on people of color.”  Garland’s moratorium “does not resolve what was posited in that memo: ‘Is the death penalty fundamentally unfair in its application?’ If you believe that, you would not pursue it” in Gendron’s case, Williams said.

Especially because the facts in Gendron's case are relatively similar to those that led to Roof being sent to federal death row, I can see a basis to say a commitment to equal justice demands pursuing the death penalty for Gendron. But, if one sincerely believes the entire system is fundamentally inequitable, I can also see a basis for saying a commitment to equal justice demands never seeking the death penalty. It will be interesting to see what AG Garland decides.

Prior related post:

• Will feds consider a capital prosecution of the racist Buffalo mass murderer? 

Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"?

As highlighted by prior posts here and here, I am intrigued by what Supreme Court's big Bruen ruling (basics here) will mean from Second Amendment jurisprudence and a variety of gun prohibitions.  But the question in the title of this post is prompted by this  Washington Post opinion piece by Aimee Carlisle, Christopher Smith and Michael Alexander Thomas which seems to have particular grand expectations about what Bruen could bring.  Here are excerpts:

As public defenders in New York City who represent people charged with illegal gun possession — people who, according to the New York City Police Department’s own data, are almost invariably Black and Brown — we see the majority’s decision in New York State Rifle & Pistol Association v. Bruen as an important step to ending mass incarceration.  That’s why we joined other public defenders in filing an amicus brief in the case asking the court to abandon its ivory tower and consider the law’s impact on those people who bear the brunt of New York’s gun laws — our clients....

Because possession of an unlicensed, loaded firearm is a “violent felony” under New York law, people with no criminal record who are convicted face a mandatory minimum sentence of 3½ years in prison; the maximum is 15 years.  They can lose their jobs, their housing, their children and, if they are not citizens, their right to live in the United States. All for carrying a gun without ever threatening anyone or pulling the trigger — conduct that in many states is not a crime at all....

Now, following the landmark ruling in Bruen, New York can no longer impose hurdles that render the Second Amendment a fiction.... The solution to gun violence is not imprisoning people simply for carrying a gun — and burdening them with the lifelong consequences that follow.  The only acceptable solution must reject racist intent and impact at every stage.  We must break our addiction to mass incarceration.

The next steps are clear.  Now that the Supreme Court has spoken, prosecutors must dismiss all gun cases that punish people for engaging in constitutionally protected activity and free them from jail.  As state lawmakers weigh their legislative response to the decision, we hope they will finally safeguard New Yorkers’ right to keep and bear arms and create a system free of racism.

I always eager to see our laws move away, in any and every possible way, from unnecessary and excessive incarceration.  And I am hopeful that any and all persons now incarcerated based on criminal laws that Bruen makes constitutional will swiftly get justice pursuant to their constitutional rights.  But there is a long history of legislators, prosecutors and others often working quite hard to restrict which defendants get retroactive relief from major Supreme Court ruling and to find new ways to criminalize a broad swatch of disfavored conduct.  Though Bruen may end up having lots of echoes, I am not certainly expecting it to make a real dent in our nation's incarceration levels.  

Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 

Could the EQUAL Act get passed as part of some kind of "omnibus" federal marijuana reform bill?

The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes."  Here are some of the intriguing particulars from an extended piece worth reading in full:

Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.

The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say.  That said, no deal is set in stone and talks are ongoing.

In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....

Interestingly enough, a non-marijuana item might also be part of the deal in the works: the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine, which experts say has exacerbated racial disparities in the criminal justice system. That legislation has passed the House in standalone form and has substantial bipartisan support in the Senate. “These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”

Given that I am not especially bullish on the likelihood that significant marijuana reform making it through the current Congress, I am not especially keen on the idea of tethering crack sentencing reform to marijuana reform.  But, given that the EQUAL Act seems to be stalled in the Senate (despite more than 10 GOP co-sponsors), maybe this new marijuana talk is good news for the prospects of sentencing reform.  Notably, this recent Hill commentary by Marc Levin, headlined "Bipartisan drug sentencing reform isn’t a pipe dream," argues that the EQUAL Act could still "receive a rare bipartisan embrace."  Whether with a side of weed or on its own, I sure hope the EQUAL Act gets to the desk of the President as soon as possible.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?  
• Hoping it is not yet time to give up on passage of the EQUAL Act 

"'How Much Time Am I Looking At?': Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts"

The title of this post is the title of this recent article authored by Walter Gonçalves and available via SSRN. Here is its abstract:

Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing.  The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions.  Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread.  Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers — the most prevalent defendants in federal court.

This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs.  The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible.  This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case.  It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.

Notable (Pyrrhic?) victory under California Racial Justice Act for double murderer getting LWOP

A couple of years ago in this post, I noted the enactment of the California Racial Justice Act and suggested it could have a significant impact depending upon how it was applied by judges in the state.  I have not followed closely subsequent litigation over the CRJA's application, but this week I did see this local report on a notable ruling under the headline "O.C. district attorney violated Racial Justice Act in double murder case, judge finds."  Here are the basics:

An Orange County Superior Court judge ruled Friday that Dist. Atty. Todd Spitzer violated the Racial Justice Act when he made comments about the dating habits of Black men while discussing a double murder case.

However, Judge Gregg Prickett stopped short of imposing any sanctions that would have reduced Jamon Buggs’ sentence.  The appropriate remedy in the case — seeking life without the possibility of parole rather than the death penalty — had already been applied by the district attorney’s office, Prickett said.

The Racial Justice Act, passed in 2020, prohibits prosecutors from seeking or obtaining a criminal conviction or imposing a sentence based on race, ethnicity or national origin.  “The defendant has received what the statute would say was the appropriate remedy for the violation,” Prickett said.  “The court does not find that it would be in the interest of justice to dismiss enhancements, special circumstances or reduce charges.”

Buggs, who was convicted of murder in May for fatally shooting a man and woman inside a Newport Beach condominium, allegedly in a jealous rage, was sentenced by Prickett to life in prison without the possibility of parole....  During a roughly two-week trial, Buggs’ attorneys argued that he killed Darren Partch, 38, and Wendi Miller, 48, in the heat of passion, fueled by what they described as a toxic relationship between Buggs and his ex-girlfriend, Samantha Brewers....

The case had been mired in controversy since Spitzer made racist comments about the dating habits of Black men during an October staff meeting on whether to pursue the death penalty against Buggs.  At the meeting, Spitzer told prosecutors that he knows “many Black people who get themselves out of their bad circumstances and bad situations by only dating white women,” according to a memo written by then-prosecutor Ebrahim Baytieh, who attended the meeting.

Spitzer has said allegations of “any racial animus or bias against the defendant are baseless and quite frankly offensive.”  Buggs is Black, while Buggs’ ex-girlfriend and Miller are both white. Spitzer has alleged that Baytieh wrote the memo in retaliation because Spitzer had initiated an investigation of him related to another murder case....

Prosecutors argued in court Friday that the defense failed to provide a preponderance of evidence that Spitzer’s comments negatively affected Buggs’ case. Denise Gragg, one of Buggs’ defense attorneys, said Spitzer’s comments were an example of “the oldest bias that exists” regarding Black men and white women. She added that Spitzer has not acknowledged his comments as biased.

“If you can’t even recognize that is a bias, how can you assure yourself or us that there were not decisions made in this case or not made in this case that were influenced by that bias?” she asked. “Justice is not just done from the jury box,” she added. “It’s done from the back halls; it’s done in chambers…. That is the place where this case was damaged.”

A quick Google search did not turn up any reports or data on how the California Racial Justice Act has been applied or adjudicated so far.  I continue to suspect the CJRA could have a variety of notable impacts (especially if it were to ever be made retroactive). But the accurate statement that many criminal justice decisions get made in "back halls," and the broader challenge of identifying and crafting remedies for problematic discretionary decision-making, necessarily means the impact of the CJRA may prove hard to fully gauge or assess.

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?  

"Gentlewomen of the Jury"

The title of this post is the title of this notable paper recently posted to SSRN authored by Vivian Rotenstein and Valerie P. Hans. (The recent verdict in a high-profile state civil trial with a small, mostly male jury perhaps makes this research especially timely.) Here is the paper's abstract:

This Article undertakes a contemporary assessment of the role of women on the jury.  In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.”  Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service.  Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles.  We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases.  We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury.

After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service.  Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

So many depressing stories in a country awash with so many guns

Another week brings news of another horrific mass shooting in the USA, this one ever so depressing because its victims were so many young children murdered at an elementary school.  And, sadly, mass shootings are only one component of modern depressing gun realities in the United States: recent years have brought increases in gun homicides as gun sales have continued to spike.  While recent homicide numbers would seem to undercut narratives that more guns mean more safety, I have come to doubt that any horrible mass shooting or any detailed data are likely to alter our nation's current gun policies or politics.

That said, particularly with a major Supreme Court Second Amendment ruling likely in the works, I still find data about how existing gun laws are criminally enforced to be noteworthy.  And this data can also be quite depressing, as evidenced by this new lengthy local article headlined "There’s a large racial disparity in federal gun prosecutions in Missouri, data shows."  Here are excerpts:

[Darrell] Hargraves [in 2018] became one of more than 3,600 people convicted between 2015 and 2021 for federal firearm possession in Missouri, which outranks the rest of the nation for its rate of prosecution of such crimes.

In an analysis of federal sentencing and crime data, The Kansas City Star found Black people were disproportionately convicted for illegally carrying firearms compared to white people.  They were also sentenced more harshly.

In the Eastern District, a federal court jurisdiction that includes St. Louis, 81% of those convicted of illegal firearm possession in the past seven years were Black. In the Western District, which includes Kansas City, 54% were Black. Together the two districts cover the entire state of Missouri.  The state’s population is 12% Black.

In the Western District in 2020, Black people were also more than twice as likely to receive sentences above the recommended guidelines for firearm possession compared to white people, according to data from the United States Sentencing Commission.

Don Ledford, a spokesman for the U.S. Attorney’s Office in the Western District, said the office did not have demographic information on gun possession convictions.  “Race is not a factor in prosecutorial decision making or sentencing recommendations,” Ledford said.  “Therefore, we don’t track defendants or cases on that criteria.”

But researchers, advocates and community members say when it comes to carrying guns, Black people are treated differently as a result of the structure of the state’s gun policies and uneven enforcement.  “There was certainly a racial politics on who got to carry a gun ... There were African American men who tried to open carry and would get attacked or shot,” said Dr. Jonathan Metzl, author of “Dying of Whiteness” and director of the Center for Medicine, Health, and Society at Vanderbilt University.  “They’re seen as criminals.”...

Hargraves said he wants to see the community be safer. “I do understand there are individuals that regardless of race are harming people,” he said. “My problem lies … in unfairness, the unfairness in sentencing, the unfairness in prison, the unfairness in not assessing the overall situation.”

The Eastern and Western districts of Missouri ranked first and sixth, respectively, for the number of people incarcerated for illegal firearm possession in any federal district in 2021.  The year before, they ranked first and third.

The rate of firearm possession began to noticeably increase in Missouri’s federal districts in the early days of Project Safe Neighborhood, a U.S. Department of Justice program that began in 2001, said Ken Novak, a criminal justice professor at the University of Missouri-Kansas City.  It brought together federal, state and local law enforcement officials, prosecutors, community leaders, and other stakeholders to identify the most serious violent crime problems in each region. In Missouri’s federal districts, that was gun violence and homicides, said Novak.  That led to more federal prosecutions for gun violations....

However there is little evidence to suggest incarcerating people for firearm possession helps curb violent crime or targets those who perpetrate gun violence in their communities, according to research by legal experts and federal defenders.  In Missouri, the majority of violent crimes are committed by people under the age of 30, according to data from the FBI’s Uniform Crime Reporting program.  Meanwhile, 63% of those convicted for federal firearm possession in the state are 30 or older.

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

"Criminal Law Exceptionalism"

The title of this post is the title of this new article on SSRN authored by Benjamin Levin.  Here is its abstract:

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded.  In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy.  Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions.  Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned.  Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn.  But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance — issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.  What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative, rather than exceptional? Ultimately, I argue that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning — and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls

The folks at The Sentencing Project have assembled some fascinating data on the number of incarcerated women at this site and in this fact sheet. Here is part of their description of the fact sheet:

Between 1980 and 2020, the number of incarcerated women increased by more than 475%, rising from a total of 26,326 in 1980 to 152,854 in 2020.  The total count in 2020 represents a 30% reduction from the prior year — a substantial but insufficient downsizing in response to the COVID-19 pandemic, which some states began to reverse in 2021.

Research on female incarceration is critical to understanding the full consequences of mass incarceration and to unraveling the policies and practices that lead to their criminalization. The number of incarcerated women was nearly five times higher in 2020 than in 1980.

Incarcerated Women and Girls examines female incarceration trends and finds areas of both concern and hope.  While the imprisonment rate for African American women was nearly twice that of white women in 2020, this disparity represents a sharp decline from 2000 when Black women were six times as likely to be imprisoned.  Since then Black women’s imprisonment rate has decreased by 68% while white women’s rate has increased by 12%.

Similar to adults, girls of color are more likely to be incarcerated than white girls.  Tribal girls are more than four times as likely, and African American girls are more than three times as likely as white girls to be incarcerated.

All the data in the fact sheet are fascinating, and these particular data points really caught my attention:

• The rate of imprisonment for Black and Latinx women has declined since 2000, while the rate of imprisonment for white women has increased.

• Between 2000 and 2020, the rate of imprisonment in state and federal prisons declined by 68% for Black women, while the rate of imprisonment for white women rose by 12%....

• Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 23% of incarcerated women have been convicted of a property crime, compared to 15% among incarcerated men.

• The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2019.

"Race-Norming and Statistical Discrimination: Beyond the NFL"

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

This Article uses the recent NFL “race-norming” scandal — in which Black players with concussion claims were scored differently on cognitive impairment tests, based on the assumption that they were less intelligent at baseline—  as an entry point to a broad-ranging analysis of inconsistencies in the law’s treatment of statistical discrimination.  The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. This doctrine makes practices like the NFL’s not just repugnant, but illegal — yet such practices are pervasive and persistent, in high-stakes settings far beyond the NFL.  Similar race-norming in diagnostic algorithms is ubiquitous in medicine, for example, but has avoided legal scrutiny.  Moreover, the justice system itself has embraced numerous similar practices, including demographic norming of intellectual-capacity assessments for defendants facing the death penalty, explicit class-based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages.  This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

"Low Income, Poor Outcome: Unequal Treatment of Indigent Defendants"

The title of this post is the title of this new paper on SSRN authored by Nino Monea. Here is its abstract:

It is no secret that the law treats poor people worse than rich ones.  This is true in criminal law and everywhere else.  But some laws do not simply result in disparate impact upon the poor — the way they are written explicitly targets or disadvantages the poor.  This Article examines the spectrum of expressly biased laws in four major categories.

First, laws that criminalize poverty: bans on poor housing or no housing, traffic laws that require nothing more than paying for things, and cash bail that imprisons people without access to credit.  Second, courts impose an enormous number of unwaivable fees at every step of the criminal justice system, and failure to pay results in incarceration — a modern day debtor prison.  Third, many criminal procedure rules place the needy on unequal footing.  Only indigent defendants are required to suffer reduced expectations of privacy, disclose certain information, face judicial scrutiny, endure low caps on what their attorneys can be paid, or go into hearing without an attorney.  And fourth, after conviction, these defendants face unique hurdles to recover for wrongful imprisonment or expensive expungement processes.

"Abolishing the Evidence-Based Paradigm"

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

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform.  This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration.  It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing.  The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics — lead the way and purports to have no agenda beyond identifying effective, efficient reforms.

This Article challenges the paradigm’s core claims.  It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter.  In other words, the evidence-based paradigm is political, and it does have an agenda.  And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens — rather than challenges — the existing system.

The Article argues that, if left unchallenged, the evidence-based paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity.  Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision.

GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Regular readers should be aware from my prior postings that Congress seems poised to pass the EQUAL Act to entirely eliminate the crack and powder cocaine sentencing disparity.  This disparity and its racialized impacts have been an ugly part of the federal sentencing landscape for over 35 years (when Congress first created the 100:1 disparity), and the Fair Sentencing Act of 2010 only partially reduced the disparity (down to 18:1).  But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act to end disparity last year, and after the Senate version had secured 11 GOP sponsors, I was hopeful the powder and crack cocaine disparity could and would finally be ended this year.

But, this press release from Senator Chuck Grassley's office, titled "Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend," now has me concerned that a competing bill might now muck up the works.  Here are the details from the release:

Sens. Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey Graham (R-S.C.) today introduced the SMART Cocaine Sentencing Act, which will reduce the sentencing disparity between crack and powder cocaine offenders tried in federal courts. The legislation aims to make sentencing fairer while also preserving the ability of courts to keep those most likely to reoffend off the street.

“I’ve worked on this issue for many years. I cosponsored the 2010 legislation led by Senators Durbin and Sessions to reduce the disparity in sentencing from 100-to-1 to 18-to-1.  It’s high time to do more to address this important issue and make our criminal code more just and fair.  Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties.  Powder cocaine is being trafficked across the border in historic volumes, so we also need to take precautions that ensure these traffickers also face justice for spreading poison through our communities,” Grassley said....

This sentencing disparity between crack and powder cocaine offenders has had a disparate impact on communities of color across the country.  Reducing this disparate impact is critical, but must be thoughtfully enacted to prevent likely reoffenders from returning to communities just to violate the law again.

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses.  This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses.  According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.  Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses. 

The SMART [Start Making Adjustments and Require Transparency in] Cocaine Sentencing Act will reduce the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1. It reduces the volume required to trigger 5-year mandatory minimum sentences for powder cocaine from 500 grams to 400 grams, and from 5 kilograms to 4 kilograms for 10-year mandatory minimum sentences.  For crack cocaine, the volume triggering a 5-year mandatory sentence is increased from 28 grams to 160 grams; the volume for the 10-year mandatory sentence is lifted from 280 grams to 1,600 grams.

Critically, the SMART Cocaine Sentencing Act also requires an attorney general review and certification process for any retroactive sentencing adjustments. It provides for new federal research from the Drug Enforcement Administration and the Department of Health and Human Services regarding the lethality and addictiveness of these substances as well as what violence is associated with cocaine-related crimes. The legislation also requires a new report from the USSC on crack and powder cocaine offenses, including data on recidivism rates....

Full legislative text of the SMART Cocaine Sentencing Act can be found HERE.  

Kevin Ring has an effective Twitter thread here criticizing various aspects of this proposal, which he calls the "The Grassley Unequal Act."  I hope that this bill does not impede progress on the EQUAL Act, but the fact that the EQUAL Act has not become law already make me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?

UPDATE:  This new New York Times article, headlined "Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress," details why the EQUAL Act may not get to the finish line in this Congress.  Here are excerpts:

[W]ith control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.

Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.  “I assume the topic opens itself pretty wide,” said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles....

Though Mr. Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor.  Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year....

Its supporters say that they recognize the difficulties but believe that it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.  “Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”

The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November....  Senator Mitch McConnell, the Kentucky Republican and minority leader, this week reprised his criticism of Judge Jackson and attacked Mr. Biden for having issued his first round of pardons and commutations, including for those convicted of drug crimes.  “They never miss an opportunity to send the wrong signal,” he said of Democrats.

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.  “My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” Mr. Cotton said.

The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.  “Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Mr. Grassley, the top Republican on the Judiciary Committee.

Sponsors of the Equal Act say they intend to push forward and remain optimistic that they can overcome the difficulties.  “We’ve got an amazing bill, and we’ve got 11 Republicans and people want to get this done,” said Senator Cory Booker, Democrat of New Jersey and the lead sponsor of the legislation. “My hope is that we are going to have a shot to get this done right now.”

With strong advocates of the EQUAL Act now saying that getting this to the floor of the Senate is "doable" or can "have a shot," I cannot help but think it is quite a long shot this Congress.  Sigh.

New Grid feature take close look at "past and uncertain future of executions in America"

The publication Grid has this terrific new dive into the US death penalty under this full title: "The death penalty: The past and uncertain future of executions in America; Fewer people are being sentenced to death, and concerns about cruelty and racial bias remain, but some states are trying to move ahead with executions anyway."  Though that title reveals some key themes to Grid's overall review, the full coverage is thoroughly engaging because it includes three different reporters unpacking three different "lenses" of the story.  Here are the headlines of each of the pieces:

Legal: "Shifting views of 'cruel and unusual'"

Science: "Medical groups and drug companies push back"

Policy: "Support for executions wanes, but racial bias persists"

In addition to the discussion of the issue through different lenses, the Grid piece has some really cool data graphics.  One sets out the yearly particulars behind this execution factoid: "A majority of all 14,480 recorded executions since 1800 have been by hanging.  About a third have been by electric chair, 1 in 10 by lethal injection and less than 1 percent by firing squad."

"Bad Faith Prosecution"

The title of this post is the title of this new paper on SSRN authored by Ann Woolhandler, Jonathan Remy Nash and Michael G. Collins. Here is its abstract:

In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common than ever.  The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution.  The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution.  Many have condemned the standards used by the Court as unduly limiting bad faith prosecution claims, and as inconsistent with ordinary standards for proving cases of unconstitutional motivation.  In this article we address these criticisms and suggest that current standards may provide an appropriate middle ground between the perils of standards that are too lax or too stringent for bad faith prosecution claims.  We also address other arguable inconsistencies between the standards for bad faith prosecutions claims and those for related areas, and offer resolutions. Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier.

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

Prison Policy Initiative releases new report providing a "deep dive into state prison populations"

As detailed in this press release, today the "the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up."  Here is more about the report from the press release:

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020.  The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society.  Key takeaways include:

• Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

• Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.

• The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.

• Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives.  Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ.  Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.  While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

"Transgender Rights & the Eighth Amendment"

The title of this post is the title of this recent article authored by Jennifer Levi and Kevin Barry and just posted to SSRN.  Here is its abstract:

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.  The treatment of incarcerated transgender people is no exception.  Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex.  But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019 — the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person.  Other state departments of corrections will surely follow, as they must under the Eighth Amendment.  These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy.  But they trend in one direction: toward a recognition of the rights and dignity of transgender people.