Sentencing Law and Policy

"Justice Theater in the Criminal Law Curriculum"

I just came across this recent article about legal education that was posted to SSRN earlier this year and is authored by Gregory Brazeal. (I wrote a little on this topic more than 20 years ago, and I still view legal education on crime and punishment matters to be important underexplored issues.)  Here is this new article's abstract:

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment.  The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.  How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration.  This article agrees, and focuses on two concrete critiques, alongside two corresponding curricular reforms.

First, criminal law courses routinely introduce the field in part by discussing a series of theoretical “justifications of punishment” such as retribution, deterrence, incapacitation, and rehabilitation.  These discussions often provide students with tools for arguing in favor of punishment, and in particular incarceration, without providing relevant empirical evidence that shows the limits of the theoretical justifications.  Students are invited to focus on the theoretical benefits of incarceration without being adequately exposed to the negative effects of incarceration as it is actually practiced in the United States today.

The tradition of introducing criminal law through the discussion of theoretical justifications for punishment should be abandoned.  Instead, the article proposes beginning the criminal law course with an empirically informed discussion that frames criminal law as one response among many to the social problem of public safety.  Second, the bulk of most criminal law casebooks consists of excerpts from judicial opinions.  These excerpts tend to describe harmful acts carried out by defendants without providing adequate context for thinking seriously about justice.  The excerpts send the message that criminal harms result from isolated, individual choices by bad people, rather than being conditioned by situational and other factors, including policy choices by the state.

The article proposes replacing criminal law case excerpts with a method of instruction based on case studies, similar to the case study method used in many professional schools.  Case studies could provide students with more context for understanding criminal harms, and in particular could better equip future prosecutors to serve as “problem-solver[s] responsible for considering [the] broad goals of the criminal justice system,” as the ABA Criminal Justice Standards demand. In the coming years, the arrival of the NextGen bar exam will offer an occasion to reconsider how criminal law is taught in the United States.  Rather than continuing to train students in ways of thinking that facilitate mass incarceration, the curriculum should be changed. 

End of week round-up with a wide array of criminal justice and sentencing pieces

The weather contributes to the feeling that we are in the so-called dog days of summer, and this week had plenty of press dogs barking about a lot of criminal justice and sentencing topics.  As always, this lengthy list is still just an abridged review of pieces that caught my eye in these busy times: 

From The 19th, "From arrest to release, there’s a new effort to investigate the experiences of incarcerated women"

From the ABA Journal, "Chemerinsky: These Supreme Court sleeper cases will have lasting impact"

From Al Jazeera, "What is the controversy behind Louisiana’s new surgical castration law?"

From the AP, "Court filings provide additional details of the US’ first nitrogen gas execution"

From Axios, "Louisiana eliminates parole and reduces "good time" early release"

From Bloomberg Law, "DOJ Starts Pilot to Pay Whistleblowers for White-Collar Tips"

From The Bulwark, "Criminal Justice Reform: Trump’s Indifference vs. Harris’s Mixed Record"

From the Davis Vanguard, "Study Suggests Deadly Role Race Plays in California Capital Sentencing Decisions, Charging, ‘Racial Factors Have Infected California Capital Sentencing’"

From The Hill, "Harris faces calls to address mass incarceration, drop prosecutor vs. criminal line"

From The Marshall Project, "Facing Rollbacks, Criminal Justice Reformers Argue Policies Make People Safer"

From MLive, "Frail inmates have better shot at early release from Michigan prisons under updated law"

From NBC News, "Ex-AG Holder: Accused 9/11 terrorists avoid death row because of 'political hacks' who blocked a U.S. trial"

From NJ Spotlight News, "NJ clemency review process is ‘a potent model for national change’"

From the Wall Street Journal, "For Big Companies, Felony Convictions Are a Mere Footnote"

From the Washington Post, "Study examines link between family incarceration, children’s health"

From WMNF, "Jeb Bush says he regrets not revamping the death penalty when he was Florida governor"

Some recommended crime and punishment Substack (beach?) reading

Because I am going to be on the road for much of the next few weeks, I am not sure about how much blogging time I will have.  But I am sure I am hoping to catch up on some beach reading during this time; for a nerd like me, that means catching up on some long SCOTUS rulings and some law review articles.  It might also mean, in this digital day and age, some commentary on Substack.  As noted here a few weeks ago, I recently helped create a Substance place and space for sentencing discussions titled Sentencing Matters Substack, and I did so in part because I had seen a few other folks use the venue for some longer form crime and punishment commentaries.  To that end, I thought I'd round up a few recent posts of notes from these substack spaces:

From Sentencing Matters, "Envisioning a second-look sentencing agenda for the US Sentencing Commission"

Also from From Sentencing Matters, "Is it Time for the U.S. Sentencing Commission to Issue a Detailed, Written, and Reasoned Opinion on When it Applies Guideline Amendments Retroactively?"

From External Processing, "How I Learned to Stop Worrying and Love the Crime Decline"

Also from External Processing, "The Incredible Disparity in Firearms Homicide Victimization"

From Jeff-alytics, "Growing Evidence That Murder Fell At A Record Pace In 2023"

Also from Jeff-alytics, "Crime Data Needs a Statcast Era"

This limited list of Substacks not only highlights some of my favorite reads, but also that I could use some more recommendations in this space.  So if folks have favorite crime and punishment reads, please consider sharing in the comments.

UPDATE:  Here is one more just posted to Sentencing Matters, "Can Machine Learning Bring More Diversity – and Maybe Some New Thinking and Insights Too – to the U.S. Sentencing Commission?"

Rounding up some notable recent sentencing and prison pieces

A couple of busy weeks has meant I have not had time to flag some newsworthy and noteworthy sentencing and prison stories.  So, making up for lost time, here is a small (and incomplete) round up of some stories catching my eye:

From Alaska News Source, "Resigned Alaska federal judge had conflict of interest in 23 criminal cases, federal prosecutors say"

From the Daily Caller, "‘Could Very Well Be A Death Sentence’: Jonathan Turley Says Bob Menendez Faces Long Prison Stay After Conviction"

From The Hill, "FCC votes to lower call rates for incarcerated people"

From the Los Angees Times, "Can chess games and toilet paper change prison culture? Inside San Quentin’s big experiment"

From Mother Jones, "Has Prison Programming Recovered from Covid?"

From NPR, "Women don’t have equal access to college in prison. Here’s why"

From the Tampa Bay Times, "DeSantis increased executions during his campaign. Then he slowed down."

From The Vera Institute, "The Double Standard of Donald Trump’s Court Sentencing"

A new (sub)space for more sentencing commentary from more voices

I am pleased to highlight today a new place and spece for sentencing discussions, Sentencing Matters Substack.  In this first posting at that location, I provide a bit of the origin story and vision for this new endeavor:

This is a new substack designed to be a new space for commentary about sentencing matters by a set of sentencing-interested academics.

I already have a blog, Sentencing Law and Policy, where I have been writing about sentencing matters for over two decades(!).  But in that space, I do a lot of posts that I might label “reporting” focused around sentencing news and cases and scholarship....  I feel I rarely make as much time as I would like for more and longer commentary posts at SL&P.  And, upon seeing a number of friends and colleagues use Substack for effective original commentary, I started to get a hankering for trying out this medium as one new way to prompt myself to make more time for more longer-form sentencing commentary.

As this idea germinated, a new catalyst for growth emerged: Jonathan Wroblewski, who had served for many years as the Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice and also as DOJ’s ex officio respresententative on the US Sentencing Commission, told me he was working on a series of commentary pieces that he was hoping to have posted on Sentencing Law and Policy.  I said I would be honored to place these pieces on SL&P, but I added that I would be even more excited to start a sentencing Substack as a place for both of us (and perhaps others) to share all sorts of sentencing talk about all sorts of sentencing matters.

In addition, my long-time co-managing editor with the Federal Sentencing Reporter, Steven Chanenson, agreed to be another stacker(?) on this new Substack.  Among an array of virtues and contributions, Steve suggested the titled title “Sentencing Matters” for this effort and also got a blessing to use that great title from another legendary sentencing academic who came up with it first.

I am hopeful, though not at all confident, that this new Substack will compliment and enhance my work on this blog.  Indeed, I am already excited to be able to flag Jonahan Wroblewski's first Sentencing Matters Substack posting here, titled "Why I Still Believe in Sentencing Guidelines (Just Not the Current Federal Guidelines)."  Here is a closing section of his posting, which should be read in full:

The insights of these scholars [like Professors Daniel Kahneman and Barry Ruback] also reveal that while a structured and actuarial model of decision making will outperform most humans on consistency and along other dimensions, greater detail in the decision-making structure, like the federal Commission decided to incorporate in drafting the federal sentencing guidelines, does not necessarily bring with it greater validity across dimensions.  In fact, much research suggests that attempts at greater precision will often lead to lower validity.  This is the experience of the federal guidelines.  The guidelines were drafted to dictate precise sentencing outcomes, and many judges recoiled.  But more than that, the attempts at precision ran into psychological and constitutional limitations.  Especially now, 20 years after the Booker decision, it is time to revisit the guideline structure created by the first Commission.

The guidelines are a case study in a failed attempt to use brute force – and too much precision – to get to particular algorithmic outcomes.  Of course, there is another way to bring consistency and sound policy to sentencing decisions.  As Richard Thaler and Cass Sunstein suggested in their best-selling book, Nudge, which was also drawn from Kahneman’s work, policy makers can create a less dictatorial choice architecture to try to move decision makers, like sentencing judges, in a particular direction.  With psychological scholarship in mind, it is not difficult to imagine a simpler federal sentencing decision tree, one ironically with even greater richness than the current federal guidelines and yet simultaneously more understandable to all, including those being sentenced, the victims of crime, and the general public.  One need only look to guidelines system of many states and certain foreign countries that have learned from the U.S. federal system what not to do.  Most everyone familiar with the federal guidelines can agree upon this: they are not nuanced; they are not a nudge; and they are not a model.

Highlighting an era of federal sentencing with "hits" from the Federal Sentencing Reporter

The visionary work of founding editors Daniel J. Freed and Marc L. Miller launched the Federal Sentencing Reporter back in summer 1988 when the federal sentencing guidelines were just starting to be used in federal courts and when the very constitutionality of the Sentencing Reform Act coming under Supreme Court review.  Three dozen years later, the current FSR managing editors (Steve Chanenson and I) have wrapped up FSR's Volume 36 with a republishing of past FSR articles organized around a “greatest hits” theme in a super-sized issue titled "Four Decades of the Great American Sentencing Songbook." 

For both old and new followers of federal sentencing laws and practice, I am hopeful this collection can serve as an invogorating reminder of all the ideas and issues wrapped up in modern sentencing reform history.  And this issue also captures a transition moment in FSR history as Steve and I explain in our short introductory essay.  Here are excerpts from its start and end:

Sentencing is the soundtrack of the criminal law. Sometimes it garners all the attention, starting at the beginning of a criminal prosecution as lawyers and the general public consider what punishments are possible and likely based on alleged wrongdoing.  When other issues garner attention, sentencing concerns are always part of the backbeat — always humming in the minds of criminal justice actors, even if in the background — setting the atmosphere for action in and out of the courtroom.

With this issue closing out volume 36 of the Federal Sentencing Reporter, the managing editors are in the mood for reflection.  This reflective mood is inspired by a coming change in FSR operations.  Since its founding in 1988, the journal has been ably published by the University of California Press, primarily in partnership with the Vera Institute of Justice.  Now, starting with the next volume, FSR will have a new publisher as part of a new arrangement with The Ohio State University, which stepped into Vera’s shoes at the start of this calendar year.  Like all transitions, this presents an opportunity for taking stock.

This issue of FSR looks back — incompletely, by necessity — at the transformative decades of federal sentencing after the Sentencing Reform Act and three dozen years of FSR reporting on the broader landscape of sentencing and punishment....

We have organized the reprinted pieces that follow around a kind of FSR’s "greatest hits" theme, in part to connote and acknowledge that a wide range of people, seen and unseen, have contributed in myriad ways to the long-running Federal Sentencing Reporter band.  As the first reprinted pieces highlight, our show got off to an extraordinary start thanks to the visionary work of founding editors Daniel J. Freed and Marc L. Miller.  For more than a third of a century, our exceptional contributors have kept the FSR beat alive, and we are confident the journal will continue to thrive for decades to come.  We hope you enjoy this push of the replay button for the final FSR issue published by the wonderful producers of this sentencing experience at the University of California Press.

While we were SCOTUSing: rounding up some non-Supreme Court sentencing stories

I have been pretty consumed the last couple weeks just trying to keep up with all the notable criminal justice stories surrounding the end of the Supreme Court's Term.  But the criminal justice system keep chugging on elsewhere, and here is a partial round-up of some stories and commentaries from the last few weeks that seemed worth flagging:

From the AP, "Child rapists can be sentenced to death in Tennessee starting July 1"

From the AP, "Hearing set to determine if a Missouri death row inmate is innocent. His execution is a month later"

From Capital B, "The Growing Crisis of Heatwave Deaths in America’s Prisons"

From the Carolina Journal, "NC Chamber polling says voters want criminal justice reforms"

From CBS News, "Biden pardons LGBTQ+ service members convicted for sexual orientation"

From The Guardian, "Will it stay or will it go? California voters decide fate of ‘momentous’ criminal justice law"

From NPR, "What to know about Louisiana's new surgical castration law"

From the Providence Journal, "'Time to release him': RI Supreme Court rules Mario’s Law applies to its namesake."

From Radio IQ, "Virginia Sentencing Commission debates 'possibly unconstitutional’ post-release system"

From Reason.com, "Republicans Upset by Trump's Conviction Should Embrace Criminal Justice Reform"

From the Salem Reporter, "Governor revokes over 20 commuted prison sentences from Salem area"

From the San Diego Union-Tribune, "As homicides plummet, experts look to the pandemic for answers"

From the Seattle Times, "After reforms, racial inequity in WA 3-strikes law remains, report finds"

From the Tallahassee Democrat, "After a flurry of executions during his presidential campaign, DeSantis now pauses"

From the Tennessee Lookout, "How CoreCivic stands to benefit as Tennessee pushes harsher prison sentences"

From WFTS (Tamba Bay), "Pay to stay: State law charging inmates for prison cells being applied differently from county to county"

A big (but still abridged) Sunday round-up of lots of (non-capital) stories major and minor

In this post a few days ago, I flagged a handful of notable capital sentencing stories making headlines at the start of June. I also noted that I hoped to find time to do a broader round-up of a broader array of sentencing news and commentary.  A little extra time allowws me the chance to note these pieces (which are still not all those of note in recent days):

From the AP, "Trump’s case casts a spotlight on movement to restore voting rights to those convicted of felonies"

From The Atlantic, "Why California Is Swinging Right on Crime"

From Empower Mississippi, "Prosecutorial Overreach: Not Just a Trump Problem"

From Forbes, "Federal Prisoner’s Dilemma, Cell Phone Or Not"

From KRCA, "Gov. Newsom, Democratic leaders are trying to negotiate Prop 47 reform off the November ballot"

From PennLive, "Value of human body parts becomes sentencing issue in federal trafficking case"

From Politico, "‘Cooking someone to death’: Southern states resist calls to add air conditioning to prisons"

From Real Clear Politics, "Restoring Confidence in DOJ Requires Accountability, New Leadership"

From Reason, "Federal Supervised Release Is a Wasteful Mess. A Bipartisan Bill in Congress Is Trying To Fix That."

From Rolling Stone, "Feds Closed a Prison Notorious for Abuse. Things Only Got Worse"

From NBC News, "Trump probation interview set for Monday after hush money conviction"

From the New York Times, "Alvin Bragg’s Next Decision on Trump Presents a Political Quandary"

From the Washington Examiner, "Sentencing reform should bring accountability and redemption"

Thrilled for start to Season 2 of "Drugs on the Docket" podcast

Around this time last year in this post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six full episodes of this first season, each running under an hour, were released at once (and are all still  available via Apple Podcasts and YouTube).  In fall of last year, the Drugs on the Docket team released, every couple weeks, some bonus "mini-episodes" which followed up on various Season 1 topics (which included the evolution of the crack cocaine sentencing, SCOTUS cases like Ruan v. US and Whren v. US, federal mandatory minimums, and much more).

Since the fall, the DEPC team has been hard at work putting together Season 2 of Drugs on the Docket, which will premire late this week.  Here is how the podcast is described via this podcast webpage along with a preview of the first episode of the new season:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University.  Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.... The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

The Drugs on the Docket podcast is back with Season 2!  This time around, we'll release an episode every two weeks. Episodes unpack ATF sting operations, the history of US drug policies and constitutional law, the revival of the U.S. Sentencing Commission, compassionate release and the 2018 First Step Act, the role of law enforcement in harm reduction, the relationship between stigma and substance use, and more.

Season 2 Episode 1 – Stash house stings with Alison Siegler and Erica Zunkel (Part 1 of 2)

Host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, kick off Season 2 with guests Alison Siegler and Erica Zunkel from the University of Chicago.  Part 1 of this two-part episode focuses on clients ensnared in undercover stash house sting operations carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and how the Federal Criminal Justice Clinic at the University of Chicago Law School sought to prove that the ATF violated the 14th Amendment Equal Protection Clause by discriminating on the basis of race when selecting its targets.

Alison Siegler is Clinical Professor of Law and Founding Director of the Federal Criminal Justice Clinic at the University of Chicago Law School; Erica Zunkel is Clinical Professor of Law at the University of Chicago Law School and teaches in the school’s Criminal and Juvenile Justice Clinic.

Release date: Friday, May 31, 2024  

As I have said before, in my (admittedly biased) view, the curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  As I have also said before, because I am eager to see this podcast continue to develop and audience (and also because my colleagues at DEPC have worked extremely hard to put this content together), I am sure to keep using this space to encourage everyone to check out new Season 2 (and old Season 1) in the coming weeks.  

An abridged and overdue weekend round-up of recent stories and commentary

I have not had time to do a round-up post in a number of weeks, and I surely cannot here flag all the sentencing/corrections pieces that have caught my eye over that time.  But, to cover a lot of ground in a short space, here are some links to pieces of possible interest to readers on an array of topics.  As always, I welcome comments on which stories and commentaries may merit more attention:

From the AP, "Starting over: Women emerging from prison face formidable challenges to resuming their lives"

From The Appeal, "Biden’s Cannabis Pardons Made Progress. A Federal Expungement Statute Would Go Further."

From CBS News, "Louisiana man sentenced to 50 years in prison, physical castration for raping teen"

From The DP3 Substack (Death Penalty Policy Project), "DP3 Analysis: More Than 10% of U.S. Exonerations in 2023 Involved Wrongful Use or Threat of the Death Penalty"

From Fox News, "California crime reform gets 'unheard of' support from DAs, small businesses, progressive mayors"

From The Hill, "There’s nothing woke about ruling against sleep deprivation in prison"

From The Marshall Project, "They Killed Their Abusive Partners. Now Their Sentences Could Be Reconsidered."

From the Missouri Independent, "Mandatory minimum sentences are an old idea, but not a good one"

From the New York Times, "Black Prisoners Face Higher Rate of Botched Executions, Study Finds"

From Newsweek, "California Democrats Keep Being the Victims of Crime"

From NOLA.com, "New Orleans serial killer who targeted gay men granted parole after 46 years inside Angola"

From Prisons, Prosecutors, and the Politics of Punishment, "States’ Dismal Reaction to Covid in Prisons, Especially for the Elderly"

From Verdict, "Judges, Heretics, and Capital Punishment"

From The War Horse, "‘Consequences of War’–Veterans Incarcerated at Higher Rates and Face Longer Sentences"

Another call for papers: Federal Sentencing Reporter issue on "Booker at 20"

In this prior post last month, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I previously threatened to repost this call every few weeks until the deadline thoward the end of May, and this week's interesting guideline amendment actions by the US Sentencing Commission (basics here) has me eager to do so.  For this post, I will not give all the background about Booker and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

"Shocking Sentences"

The title of this post is the title of this new article authored by John B. Meixner Jr. now available via SSRN. Here is its abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds.  Most arguments focus on how sentences arising from these penalties are disproportionate — that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected — indeed, shocking — to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias.  Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential.  I argue that this phenomenon happens in sentencing as well, and explains — at least in part — why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing.  Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright.  But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias.  Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

End-of-month round up of all sorts of stories and commentaries

March madness has been something of a work reality for me with all sorts of events and travel keeping me from fully keeping up with all the sentencing and criminal justice news of the month.  (The distractions of great March sports, from golf to college basketball to (fantasy) baseball, are also part of this story.)  As regular readers know well, my not-so-clever trick for catching up here on blog-worthy stories and commentaries is through a big round-up post.  So:

From the ABA Journal, "Eighth Amendment: 5th Circuit rules for prisoner allowed to sleep no more than 3.5 hours per night"

From The Atlantic by Keith Humphreys and Rob Bovett, "Why Oregon’s Drug Decriminalization Failed: The sponsors of the law fundamentally misunderstood the nature of addiction"

From the Brennan Center, "Why Inclusive Criminal Justice Research Matters"

From the Benhind the Bench Newsletter, "The Eugenics Origins of “Habitual Offender” Sentencing Laws"

From CNN by Mark Osler, "Biden’s failures in criminal justice could cost him an election"

From CNN, "The push to put Trump back in the White House is getting a boost from people he pardoned before leaving"

From the Los Angeles Times, "Days before Easter, Newsom announces dozens of pardons and commutations"

From Rick Nevin, "Young male imprisonment rates still falling in 2022, and the Sentencing Project get it wrong again"

From Newsweek by Jeff Hood, "President Biden Should Follow Through on Ending the Death Penalty"

From Newsweek by Cliff Stearns,The Death Penalty Is Important for America"

From the New York Times, "Woman Who Was Charged With Murder After Abortion Sues Texas Prosecutor"

From NPR, "Texas appeals court acquits Crystal Mason's illegal voting conviction"

From R Street by Christi Smith, "Trauma-Informed Corrections: Part Four of a Four-Part Series"

From Scientific American by the editors, "Opinion: Evidence Does Not Support the Use of the Death Penalty"

From USA Today, "'A stunning turnabout': Voters and lawmakers across US move to reverse criminal justice reform"

From WYPR News, "Judges use ‘arbitrary,’ ‘horrendous’ reasons to keep teens in adult court"

This lengthy and eclectic list of items that were piled up in my "to read" queue  do not have any clear themes and certainly do not capture the month that was.  But I hope there is something of interest for everyone, and I always welcome readers to flag additional items of interest.  With proposed sentencing guidelines and more notable SCOTUS action (and even more great sports and an eclipse here in Ohio), I am already gearing up for an exciting April.

Lots of perspectives at Vital City around criminal justice research

This new issue of the journal Vital City has a large collection of essays engaging with the rich topic of criminal justice research and practice.  There are too many intriguing pieces to flag or summarize them all here, but this Editors’ Note by Elizabeth Glazer and Greg Berman sets up the context and much of what follows. Here is an excerpt:

Starting in earnest during the Clinton administration, there has been a concerted effort by a range of important actors to try to encourage “evidence-based” criminal justice policy and programs — a phrase at once hilarious and poignant....

But the phrase does have a meaning, if coded.  The subtext, rarely spoken aloud, is an attempt to reduce the temperature of the public discourse about criminal justice, moving policymaking away from the realm of politics and into the realm of science as much as possible.  In the years before evidence-based reform emerged as a concept, high-profile tragedies — cases of child abduction or random murders — had been used to make the case for more punitive lawmaking throughout the country. At the federal level, the infamous Willie Horton campaign advertisement in 1988 performed similar work.

The evidence-based policy movement, in criminal justice and other fields, sought to move away from such demagoguery.  During the era of reduced crime that began in the 1990s, it proved reasonably successful. “Follow the data” became a rallying cry that appealed to both Democrats and Republicans.  One sign of the movement’s success was the creation of CrimeSolutions.gov, a website administered by the U.S. Department of Justice that summarizes academic research in an effort to help policymakers and practitioners figure out which criminal justice programs and practices work and which do not.

Recent years, however, have seen the emergence of a palpable backlash to the evidence-based movement.  Perhaps the most extreme expression of this backlash has been the argument by prison abolitionists and other radical activists that the evidence-based paradigm “strengthens the influence of neoliberalism, punitive impulses, and white supremacy over criminal system policy and procedure.”  They point to the fact that the United States is still plagued by levels of violence, racial disparities and incarceration rates that dwarf peer nations.  What use is social science evidence if it cannot prevent, or meaningfully ameliorate, these kinds of problems?

Earlier this year, Megan Stevenson, an economist at the University of Virginia Law School, published an essay in the Boston University Law Review raising further questions about evidence-based reform.  In “Cause, Effect, and the Structure of the Social World,” Stevenson reviews a half-century of randomized controlled trials (“RCTs” are known as the “gold standard” of social science) and finds that, “Most reforms and interventions in the criminal legal space are shown to have little lasting impact when evaluated with gold-standard methods of causal inference.”  For Stevenson, this is a reflection of the immutable social structures of the world that make change hard to engineer, at least when using the kinds of “limited-scope interventions” that lend themselves to randomized trials.  Provocatively, Stevenson argues that it may be necessary to abandon narrow, evidence-based reform and instead “seek systemic reform, with all its uncertainties.”

Stevenson’s essay got us thinking.  Is the notion that we can meaningfully address social problems a myth?  Does it really make sense to rely on evidence to guide policy?  And if so, what should this look like?

At the same time, our friends at Hypertext, the journal of the Niskanen Center — recently named the “most interesting think tank in American politics” by Time magazine — were wrestling with similar questions. So we decided to join forces. Together, we asked more than a dozen leading scholars, philanthropists, journalists and government policymakers to discuss the role of evidence in policymaking, using Stevenson’s article as a jumping-off point. The result of this exploration makes up the bulk of this issue of Vital City.

Latest issue of Federal Sentencing Reporter now (partially freely) available

This new latest issue of the Federal Sentencing Reporter includes a number of pieces on alternatives to incarceration, which I have described as a topic that seems at once forgotten and yet ever-present in the federal sentencing system.  FSR's publishers have graciaiously agree to make some of the materials in this new issue free to download for a limited time.  Since I help edit FSR, I view all the pieces in this new issue as "must reads," though folks may be especially interested in FSR's reprinting of notable speeches by US Sentencing Commission Chair Judge Carlton W. Reeves and BOP director Colette Peters which were delivered at the Center for Justice and Human Dignity’s October 2023 Summit “Rewriting the Sentence II.”

My brief introduction to this FSR issue, which is titled "A New Alternatives Agenda for the U.S. Sentencing Commission?," starts this way:

Data from the U.S. Sentencing Commission indicate that over a third of all sentenced federal defendants have no criminal history and that the vast majority of federal sentencings are for nonviolent offenses.  These realities might lead one to expect a significant number of federal sentences to involve alternatives to imprisonment, particularly given Congress’s instruction to the Commission that the sentence guidelines should ‘‘reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.’’  But, in fact, over nine of every ten federal sentences involve a term of imprisonment; nearly all federal sentencings focuses on how long a defendant will be sent to prison, not whether he could be adequately punished without imprisonment.

Lots of sentencing pieces in latest issue of the Ohio State Journal of Criminal Law

I was pleased to see that the most recent issue of Ohio State Journal of Criminal Law, which includes papers from a symposium last year covering sentencing topics, is now in print.  All the articles can be accessed via the OSJCL website, and here are just a few of the many good reads:

Like They’re Waiting for you to Die: Development of the Inadequate Medical Care Doctrine from District Court to United States Sentencing Commission by Shanna H. Rifkin & Elizabeth A. Blackwood

The Guardrails Are Off: Why Judicial Discretion in Ohio Criminal Sentencing Has Careened Out of Control and How Data Analytics Can Bring It Back on Course by Justice Michael P. Donnelly

The Use of Sentencing Data and the Importance of Getting it Right by Melissa Schiffel

Reflections from the Bench: Ohio Sentencing Law by Jennifer Muench-McElfresh

Catching up another time with a round-up post covering wide array of topics

Another few busy weeks (both past and upcoming) leads me to want to catch up on some notable pieces that have caught my recently through another eclectic, round-up post.  So here goes:

From the AP, "Biden backed off a pledge to abolish the federal death penalty. That’s left an opening for Trump"

From the Boston Herald, "The prison system needs a theory of change"

From the Colorado Sun, "A “breathtaking” request: Colorado’s public defenders say they need 230 more attorneys to provide effective counsel"

From Fox News, "Biden running out of time to fulfill 2020 campaign pledge to abolish federal death penalty"

From Inquest, "Graying in Prison: There's no aging with dignity for people serving extreme sentences."

From JD Supra, "The Imperative for Outlawing 'Acquitted Conduct Sentencing'"

From ProPublica, "What Happens When Prosecutors Offer Opposing Versions of the Truth?"

From The Vera Institute, "Cheap Jail and Prison Food Is Making People Sick. It Doesn’t Have To."

From the Wall Street Journal, "Oregon Decriminalized Hard Drugs. Now It’s Reversing Course."

From Westside Current, "11 Candidates Battling George Gascón to Become LA County's Top Prosecutor"

Lots and lots of weekend reads on lots and lots of different topics

Another weekend leads me to realize that a bunch of notable pieces have caught my eye, and yet I will not have time to blog about them in any detail.  Ergo, the time for a lengthy, and this time quite elclectic, round-up post:

From the Brennan Center, "What the Race for Santos’s Seat Says About Crime Messaging"

From The Bulwark, "How Marijuana Could Become a Political Issue in 2024"

From the Coloroda Sun, "Colorado could become the first state to require in-person voting in jails" 

From Fox News, "New York man who smuggled pythons into the US by hiding them in his pants sentenced to probation, fined $5k"

From the Kansas City Star, "Kansas hasn’t executed anyone in six decades. Kobach is preparing for that to change"

From Law360, "What Rescheduling Pot Would Mean For Criminal Justice Reform"

From the Marshall Project, "Medical Marijuana Is Legal, But Oklahoma Is Charging Women for Using It While Pregnant"

From The New Yorker, "What Do We Owe a Prison Informant?"

From NPR, "Violent crime is dropping fast in the U.S. — even if Americans don't believe it"

From ProPublica, "Oregon’s Drug Decriminalization Aimed to Make Cops a Gateway to Rehab, Not Jail. State Leaders Failed to Make It Work."

From Reuters, "Mass killer Breivik loses human rights case to end prison isolation"

From Stateline, "Drunken drivers would have to pay child support for victims’ kids under these laws"

From the San Francisco Chronicle, "A little-known feature of Prop. 47 has led to far lower crime rates for this group"

From Slate, "The True Crime Canon: The 25 best crime books, podcasts, and documentaries of all time."

From The Verge, "New bill would let defendants inspect algorithms used against them in court"

As always, I would welcome comments about any of these pieces/topics and especially about which ones might merit more attention through additional postings.

Rounding up a handful of notable weekend reads

Travel (and football) leaves me with limited time for blogging this weekend, and so I will rely on the classic round-up post to spotlight a some notable recent press pieces:

From AL.com, "Alabama granted his parole but never let him out of prison, lawsuit says"

From the AP, "Idaho inmate nearing execution wants a new clemency hearing. The last one was a tie"

From Fox News, "Families of Alabama inmates allege organs were removed without consent as expert eyes wider 'problem'"

From The Hill, "The federal prison system is in crisis. Here are the top 3 reasons why."

From The Nation, "It’s Known as 'Death by Incarceration.' These People Want to End It."

From the San Francisco Chronicle, "S.F. Mayor London Breed joins GOP-led effort to overhaul Prop. 47"

From the Star Tribune, "Hennepin County Attorney Mary Moriarty opens application process for incarcerated people to request reduced sentence"

From WFTS, "Attorneys, judges split over which death penalty cases need 8-4 vote by jury"

Highlighting just some of lots of criminal justice coverage at Bolts

I am pretty sure I have in this space praised the work being done at the digital magazine Bolts.  The folks there provide more dynamic criminal justice coverage than I can keep up with, but I figured I would flag here three recent pieces that might be of particular interest to sentencing fans:

"A Wave of States Reduce 'Death by Incarceration' for Young Adults:  Massachusetts banned sentences of life without parole for “emerging adults” up to age 21, the latest in a series of states revisiting who counts as young in the eyes of the law."

"Under the Shadow of the Extreme Case: On his first day in office, Los Angeles DA George Gascón rolled out a suite of blanket bans against some severe punishments. The ensuing years have been a crash course in the politics of reforming prosecution."

"New Jersey May Open Juries to Most People with Criminal Convictions: New Jersey has one of the nation's harshest jury exclusion laws. A bill championed by formerly incarcerated people seeks to walk that back and make juries more diverse as a result."

Rounding up an array of mid-week reads

A busy week and upcoming travel means I have lacked time to blog about a number of recent press pieces and commentary catching my eye.  So, as is my wont, I will try to cover a lot make up for limited time with a mid-week round-up post.  As always, I welcome comments on which of these stories might merit additional attention:

From Bloomberg Law, "Esformes Retrial Confronts Questions About Power of Commutation"

From Cal Matters, "As California closes prisons, the cost of locking someone up hits new record at $132,860"

From Filter Magazine, "Call It 'Overcrowding,' Not 'Understaffing,' and Fix It With Parole"

From GBH, "Five years after landmark criminal justice reform, prison racial disparities widen in Mass."

From The Nation, "Jails Are Closing Across America. Why?"

From Politico Magazine, "An ‘Execute-Them-At-Any-Cost Mentality’: The Supreme Court’s New, Bloodthirsty Era"

From the Sandusky Register, "Ohio unlikely to execute more prisoners anytime soon"

From Slate, "The Surprising Downside of a Criminal Justice Trend Reformers Might Think They Love"

From Variety, "Sundance: High-Profile Filmmakers Take Aim at U.S. Criminal ‘Justice’ System"

From the Wall Street Journal, "The Death Penalty Makes a Comeback"

The Sentencing Project releases review of "Top Trends in Criminal Justice Reform, 2023"

The folks at The Sentencing Project todat released this new report that reviews a number of state criminal justice reform developments in this past year. I recommend the short report in full for all the reviewed details, and here is its opening "overview":

The United States is the world leader in incarceration.  This year marked 50 years of the mass incarceration crisis, with the prison population having grown nearly 500% since 1973.  Today, nearly two million people – disproportionately Black – are incarcerated in prisons and jails.

However, stakeholders, including formerly incarcerated activists and lawmakers, have worked to scale back mass incarceration.  Advocacy organizers and officials in at least 10 states advanced reforms in 2023 that may contribute to decarceration and address the collateral impact of mass incarceration, while also supporting community-based public safety solutions.

This brief highlights 2023 policy reforms in decarceration, collateral consequences and youth justice.

Rounding up some notable recent reads

A very busy weekend (and week ahead) leads me to think a round-up post make be in order to cover lots of ground and recommend lots of recent pieces that are worth checking out:

From The Atlantic (by my old friend Mark Osler), "The Forgotten Tradition of Clemency: Minnesota reformed its system for granting mercy to those in prison. The federal government should take note"

From Bolts, "Inside the Urgent Campaign to Commute North Carolina’s Entire Death Row"

From Crime and Justice News, "How Conservative Governor Cut Prisoner Totals, Boosted Rehab"

From The Hill, "Why embracing criminal justice reform is a ‘First Step’ toward victory in 2024"

From MSNBC, "The ‘modern-day slavery’ in Alabama’s prisons exists in other states' prisons, too"

From the New York Times, "Prisoners Sue Alabama, Calling Prison Labor System a ‘Form of Slavery’: The plaintiffs, who are all Black, contend that the state regularly denies incarcerated people parole so that they can be “leased” out to make money for government agencies and businesses"

From The New Yorker, "Sentenced to Life for an Accident Miles: Away A draconian legal doctrine called felony murder has put thousands of Americans — disproportionately young and Black — in prison"

From NPR, "Ohio prosecutors broke rules to win convictions and got away with it"

Also from NPR, "Lawmakers push for federal prison oversight after reports of inadequate medical care"

Some long reads for a long weekend

I am on the road for (even longer than) a long weekend, but I can still provide some links to some long reads in the criminal justice and sentencing space:

From ABC News, "Here's where the 2024 presidential candidates stand on crime and criminal justice"

From the Bennington Banner, "Prosecutors and public frustrated by lenience in Bennington criminal cases"

From CNN, "Executions in the US are in decline – but some jurisdictions lead the rest"

From HuffPost, "Prisoners Say New Jersey’s Alternative To Solitary Confinement Is Pretty Much The Same"

From Michigan Radio NPR, "Sentenced to die in prison, 'juvenile lifers' ask lawmakers to end life without parole for minors"

From the Minnesota Reformer, "Minnesota cops take millions of dollars from people without criminal convictions"

From The New Yorker, "How a New Approach to Public Defense Is Overcoming Mass Incarceration"

From ProPublica, "Louisiana Supreme Court Ruling Overturns Reform Law Intended to Fix “Three-Strikes” Sentences"

From the San Francisco Chronicle, "Millennials, Gen Z committing fewer violent crimes than previous generations of youth"

From Wired, "These Prisoners Are Training AI"

Many notable new reads at Inquest website

It has been some months since I blogged about the website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  Though I have not flagged the site in a while, regular readers likely recall prior posts spotlighting many great essays, and here is another quartet of notable new pieces:

"Exceptional Punishments: No one should be made to give up their rights in exchange for being spared from prison" by Kate Weisburd

"Our Evidence-Based Obsession: Better research won’t get us out of our crisis of mass incarceration" by Jonathan Ben Menachem

"Envisioning Futures: The art of knowing what we’re confronting and revealing who is being made invisible by the carceral state" by Maria Gaspar & Gina Dent

"Chained by Debt: Erasing court costs and fines is a relatively small change that would have an outsize impact on those harmed by mass incarceration" by Shivani Nishar & Sarah Martino

A hot, long reading list for a hot, long (last?) summer weekend

The hot weather this weekend, at least on the east coast, makes it feel like we are still in the middle of summer.  But with college football and law school classes now in full swing, the Labor Day weekend certain has an end-of-summer feel.  Because I am on the road this weekend, I do not have time for full seasonal reflections, though I can assembled some interesting recent crime and punishment readings:

From AL.com, "Here is how Alabama plans to carry out first nitrogen hypoxia executions in the nation"

From The Marshall Project, "Ending the Golden State Era of Solitary Confinement"

From The Messenger, "Republicans Should Lead by Listening to the Voters on Criminal Justice Reform"

From The Nation, "Progressives Need to Have Real Answers on Crime"

From the New York Daily News, "Jeffries pushing to expand eligibility for expunging first-time minor drug convictions"

From the New York Times Magazine, "The Dungeons & Dragons Players of Death Row"

From The New Yorker, "Listening to Taylor Swift in Prison"

From PBS News Hour, "Departing governor races to move prisoners off death row in Louisiana"

From Phsy.org, "How Norway is helping to restore humanity inside US prisons"

From Reason, "Federal Prison Guards Confessed to Rape and Got Away With It"

From RedState, "The First Step Act Is a Resounding Success so Far"

From the Sacramento Bee, "Thousands of California inmates are sentenced to die in prison. Should some get to seek parole?"

Recapping some recent notable reports on prison realities and more from the Prison Policy Initiative

I recently received a helpful review of just some of the remarkable materials and data assembled by the Prison Policy Initiative on an array of prison- and punishment-related topics.  I am pretty sure I have blogged about some or even most of these reports, but I thought it still helpful to reprint here links to the reports and the brief summaries sent my way:

• Punishment Beyond Prisons: Incarceration and supervision by state -- The criminal punishment system is much bigger than jails and prisons. Our report shows that all states -- even those that consider themselves progressive leaders -- put significant numbers of their citizens on probation and parole, systems that often replicate prison conditions in the community. Two 50-state charts comparing states' rates of supervision and incarceration show that when probation and parole are taken into account, progressive states like Rhode Island don't appear too different than famously "tough" states like Louisiana.
• The aging prison population: Causes, costs, and consequences -- The share of people in prison aged 55 and older has skyrocketed over the last 30 years, from 3% in 1991 to 15% in 2021. What caused this huge shift in the prison population and what can be done about it? In a new briefing, we explain what has caused the national "greying" of prisons, highlight the harmful consequences of locking up so many older people, and point to solutions. (Includes 50-state data.)
• New data on HIV in prisons during the COVID-19 pandemic underscore links between HIV and incarceration -- Recent data from the Bureau of Justice Statistics show that the rate of HIV among people in prisons is three times higher than the general U.S. population. We break down the rates of HIV in all 50 state prison systems, exploring the root causes of this health disparity. We also discuss the criminalization of HIV across the U.S.: 35 states still have laws on the books criminalizing actions that can potentially expose another person to HIV, even if no transmission occurs.
• SMH: The rapid and unregulated growth of e-messaging in prisons -- With a growing number of incarcerated people and their families able to use e-messaging services to keep in touch, we examined how much these services cost in all 50 states and the federal Bureau of Prisons, finding that the cost per message ranges from being free (or just a few cents) in some states to a high of 50c in states like Arkansas. We also explore other concerns with electronic messaging, including privacy issues and "bulk pricing" schemes, and lay out our recommendations for how to make this service work for incarcerated people, their families, and even prisons.
• Heat, floods, pests, disease, and death: What climate change means for people in prison -- The summer of 2023 may be the mildest summer of the rest of our lives if governments do not take action to halt climate change. In this briefing, we discuss new research that proves the connection between extreme heat in prisons and higher mortality rates, with one surprising finding: During heat waves, incarcerated people in Northeast and Western states fare the worst. We also dive into how other aspects of climate change -- such as mosquito infestations and infectious diseases -- stand to impact people in prison.

Back-to-school plug for Season 1 of "Drugs on the Docket" podcast

In this post from May, I flagged that the Drug Enforcement and Policy Center at The Ohio State University had just released Season One of a new podcast, "Drugs on the Docket."  All six episodes of this first season, each running under an hour, can be accessed on Apple Podcasts, Google Podcasts and YouTube.   Especially as law professors and law students are in "back to school" mode, I thought it might be a good time to highlight this listener-friendly (and mostly timeless) resource about the intersection of drug policies and the work of criminal courts.

As I have said before, in my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  Over the summer, I heard positive feedback from fellow academics (both law profs and other profs), with some indicating that they are planning to incorporate some podcast content into their classes.  I am planning to encourage my 1L Criminal Law students to check out all the episodes, and I am also working with my terrific colleagues at DEPC to put together some bonus material (with Season 2 also in the works for likely release in Spring 2024).  

Once again, here is how the podcast subject matter is described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Please check it out because it makes for great back-to-school listening.

A busy week on the road justifies another round-up review of notable stories

A busy work week when I was mostly on the road meant mostly lacking time to blog about about a number of press articles and commentary that caught my eye.  So, continuing with a recent week-ending tradition, I will seek to catch up with this round up:

From the Austin Chronicle, "Texas Prisons Are Cooking People Alive. Are We Okay With That? Part 1 in a series about heat in prison"

From Fox News, "DOJ eyeing Americans ‘like ATMs,’ spending over $6 billion to aid civil asset forfeitures, watchdog says"

From The Hill, "Will mass incarceration outlive me?"

From The Hill, "By trying to get to Trump’s right on crime, DeSantis ends up in a ditch"

From The Hill, "They held him 525 days past his release. Will the courts let him fight back?"

From The Marshall Project, "These States Are Using Fetal Personhood to Put Women Behind Bars"

From Reason, "Idaho Keeps Scheduling This Inmate's Execution Even Though It Lacks the Means To Kill Him"

From the New York Times, "With an Array of Tactics, Conservatives Seek to Oust Progressive Prosecutors"

From NPR, "Prisons try to adjust as their inmate population grows older"

From the Washington Examiner, "Congress can finally support equal justice under the law"

From WBRZ (in Louisiana), "In response to governor, pardon board schedules hearings for 20 death row inmates seeking clemency"

From WESH (in Florida), "Gov. DeSantis suspends State Attorney Monique H. Worrell, citing neglect of duty"

"Associations in Prison"

The title of this post is the title of this interesting new article available via SSRN and authored by (my new colleague) Grace Y. Li. Here is its abstract:

Incarcerated people create, lead, and participate in a variety of associations in prison.  These associations educate and advocate for members, serve the broader prison population, cultivate social bonds, and promote the individual growth that happens in relationship with others.  The associations do so in the face of byzantine regulations that burden their formation, membership, and operations.  These rules go unchecked because the constitutional right of association is under-protected in prisons.  The deferential Turner v. Safley test for rights violations in prison prizes ease of prison administration over rights protection.  Thus, though the right of association is a fundamental constitutional right, in prison it does not enjoy the level of protection of a fundamental right.

This Article builds a conceptual framework of associations in prison.  It provides a typology of the organizations that exist in prisons today.  Most of these operate as they would on the outside, as part of civil society, which fills gaps in government provision.  The Article also explores the kinds of effects the associations have on members, which are democracy-enhancing in nature as well as communitarian and liberal.  The Article then maps the types of limitations imposed on the groups by regulations and rules.  By examining the unique challenges produced by and faced by these associations, the Article shows that broader associational jurisprudence can better protect fundamental aspects of associations by grappling with issues that arise in the unique context of incarceration.

"When Crises Collide: Mapping the Intersections of Climate, Pollution, Crime, and Punishment"

The title of this post is the title of this new article available via SSRN authored by Jeremiah Goulka, Sunyou Kang, Anna Martin, Kelsey Ensign and Leo Beletsky. Here is its abstract:

Collisions between the climate crisis, environmental degradation, the criminal justice (CJ) system, and crime are increasing in frequency, profoundly affecting a growing number of CJ personnel and the communities they serve across the United States.  Despite directly impacting thousands of CJ personnel — such as law enforcement and corrections professionals — little scholarly and official action has been taken to acknowledge or reckon with the risks of climate change and environmental degradation on public safety or the CJ system, nor how some CJ practices themselves facilitate those risks. 

This Article joins initial calls to action to scholars and practitioners to incorporate climate and environmental impacts into CJ research and practice.  It explores the lines of influence between these ecological crises and the CJ system, examining how each impacts the other.  It maps the intersections between the climate and pollution on crime; the impact of enforcement priorities and punishment upon climate policy; the health and safety of people employed by or incarcerated in the CJ system; and how CJ agencies can adapt to climate impacts.  By mapping these collisions, we identify a wide array of opportunities to profoundly improve public safety, public health, the environment, and the well- being of CJ personnel and the communities they serve.

A long round-up of sentencing news and commentary before a long weekend

I hope to be mostly off-line for most of the long weekend, and so I will lean into being away by doing a lengthy round-up of various pieces that caught my attention recently but that I did not find time to blog about.  (Also, I must remind everyone that a long weekend is a great time to lean into the Drug Enforcement and Policy Center's new podcast, "Drugs on the Docket.")   As always, I welcome reader thoughts on which of these round-up stories might justify more attention.  Here goes:

From ABC News, "All 123 US federal prisons need 'maintenance': Inspector general"

From the AP, "Alaska court reconsiders 135-year sentence given to youngest girl ever convicted of murder in Alaska"

From Bolts, "Survivors of Solitary Confinement Face the California Governor’s Veto Pen"

From the Detroit Free Press, "They thought they’d die in prison. Now they’re juvenile justice advocates on a mission"

From the Kansas City Star, "American Bar Association calls on Missouri governor to halt execution of Michael Tisius"

From The Lancet, "The death penalty: a breach of human rights and ethics of care"

From Marijuana Moment, "House-Passed Fentanyl Criminalization Bill Would Also Make It Easier To Study Marijuana And Psychedelics"

From the Marshall Project, "LIFE INSIDE, ANIMATED: An animated series featuring the stories of those whose lives have intersected with the criminal justice system."

From National Review, "Weakening Capital Punishment Jury Standards Risks Injustice"

From Pew, "Racial Disparities Persist in Many U.S. Jails"

From The San Francisco Standard, "Can 2 Years and $20M Transform San Quentin Into a Model of Prison Reform?"

From Scripps News, "After the sentence: The work to restore rights of returning citizens"

From Slate, "I Watched My Brother’s Lethal Injection.  No one understands what this is like."

Closing another busy week rounding up some notable commentary

Last month, I used round-up posts here and here to catch up on a number of capital punishment and prison-related stories during busy end-of-the-semester weeks.  This week it is mostly grading and graduation that has kept me from blogging a number of notable commentary pieces that I have seen recently.  So, catching up again with a round up, here goes:

By James Austin & Michael Jacobson, "A Model for Criminal Justice Reform: How New York City Lowered its Jail Population and Crime Rates"

By Emily Beltz, "How an Oklahoma Death Penalty Case Shook Up Evangelical Views on Execution"

By Hillary Blout & Marc Levin, "Give Texas prosecutors the chance to do justice for old cases"

By Kristen Budd, "Expanding voting rights to justice-impacted can improve public safety"

By C.J. Ciaramella, "Newly Released Government Records Reveal Horrible Neglect of Terminally Ill Woman in Federal Prison"

By Whitney Downard, "Probation, parole an overlooked population of the criminal justice system"

By C. Dreams, "How The Prison Litigation Reform Act Blocks Justice For Prisoners: Legislation signed by Bill Clinton makes it nearly impossible for people in prison to have their cases heard in court."

By Eric Reinhart, "How Community Health Workers Can End Mass Incarceration and Rebuild Public Safety"

By Rupa Subramanya, "Is Justice Still Blind in Canada?: Equality under the law is the cornerstone of liberal democracy. But judges across the country are now factoring race into sentencing."

By William Weber, Brooks Walsh, & Steven Zeidman, "New York’s Compassionate Release Laws were Designed to Keep People from Dying Behind Bars; They’re Failing"

By Raymond Williams, "Dear Prison Officials: Stop Searching My Nose for Your Contraband"

"Modernize the Criminal Justice System: An Agenda for the New Congress"

The title of this post is the title of this notable new report authored by Charles Fain Lehman, who is a fellow at the Manhattan Institute. Here is the report's executive summary:

Crime, particularly violent crime, is a pressing concern for the American people.  The surge in homicide and associated violence in the past three years has made voters skittish and prompted aggressive partisan finger-pointing.  This increase has not, however, prompted significant investment in our criminal justice system.  Ironically, as this report argues, this increase in violent crime is itself a product of fiscal neglect of that same system over the past decade.

Across a variety of measures, in fact, the American criminal justice system needs an upgrade.  Police staffing rates have been dropping since the Great Recession; prisons and jails are increasingly violent; court backlogs keep growing; essential crime data are not collected; and essential criminology research is not conducted.  These shortcomings contribute not only to the recent increase in violence but to America’s long-term violence and crime problems, problems that cost us tens of thousands of lives and hundreds of billions of dollars each year.

For too long, policymakers at all levels have failed to attend to this problem.  Instead, both the political left and right have subsumed criminal justice issues into the larger culture war, fighting over the worst excesses of the police or the horrors of criminal victimization.  Rather, they should look to past examples of federal policymaking in which lawmakers have used the power of the purse to dramatically improve the criminal justice system’s capacity to control crime.  Doing so again could ameliorate many of the major concerns voiced by both sides in the criminal justice debate.

As such, this report proposes an ambitious, $12-billion, five-year plan to bring the criminal justice system up to date. It outlines proposals to:

1. Hire 80,000 police officers;
2. Dramatically expand funding of public safety research, including creating an Advanced Research Projects Administration for public safety;
3. Rehabilitate failing prisons and jails with a carrot-and-stick approach;
4. Create and propagate national standards for criminal case processing;
5. Upgrade our data infrastructure, including by creating a national “sentinel cities” program.

Implementing these proposals would be a drop in the federal spending bucket, but they would likely have a dramatic and sustained impact on reducing the amount and cost of crime in America.

A call for papers from the Law & Psychology Review

A colleague requested that I post a call for papers from the Law & Psychology Review and he noted that the journal "routinely publishes pieces at the intersection of psychology and criminal law."  I am happy to be able to share this cal for papers:

LAW & PSYCHOLOGY REVIEW - CALL FOR PAPERS

MAY 10, 2023 DEADLINE FOR EXPEDITED CONSIDERATION

The Law & Psychology Review at the University of Alabama School of Law is the leading student-edited journal exploring the intersection of behavioral and legal studies.  We have a rigorous editorial review and revision process designed to strengthen the style and structure of each article that we select.  As a specialized journal, we bring experience and expertise when it comes to editing works with psychological and behavioral aspects.

The Law & Psychology Review is opening a special direct submission window.  Submissions (in Word or pdf format) should be emailed to [email protected].  Submissions received by May 10, 2023, at 5:00 pm CT will receive a publication decision by May 14, 2023, at 11:59 pm CT.

All submissions must include a psychological component and be relevant to law and/or policy. We prefer articles with more than 10,000 words (including references) and in Bluebook format.

If you have any questions, please do not hesitate to contact us at the email address above.

"The Ex Post Facto Clause: Its History and Role in a Punitive Society"

The title of this post is the title of this new SSRN entry that is also the title of this new book authored by Wayne Logan.  Here is the SSRN abstract:

The Ex Post Facto Clause, one of the few civil liberty protections found in the body of the U.S. Constitution, reflects the Framers' acute concern over the tendency of legislatures to enact burdensome retroactive laws targeting unpopular individuals.  Over time, a broad array of Americans has invoked the protective cloak of the Clause, including Confederate sympathizers in the late 1860s; immigrants in the early 1900s; Communist Party members in the 1950s; and, since the 1990s, convicted sex offenders.  Although the Supreme Court enforced the Clause with vigor during much of the nation's history, of late the justices have been less than zealous defenders of the security it was intended to provide.  Even more problematic, their decisions have come amid major changes in the nation's social, political, and institutional life that have made the protections of the Ex Post Facto Clause all the more important.

The "Ex Post Facto Clause: Its History and Role in a Punitive Society" begins with a survey of the Framing Era history of the Clause and then examines and critiques the Supreme Court’s extensive case law interpreting and applying it.  The final chapters provide a blueprint for how the Clause can be reinvigorated to play a more robust role in guarding against the penal populism besetting modern American legislatures.

As the Framers of the Constitution were well aware, there always have been, and there always will be, disdained individuals to serve as politically attractive targets of burdensome retroactive laws.  Guided by this reality, the book undertakes a task of historic recovery with the ultimate goal of restoring the Ex Post Facto Clause to its intended constitutional role as a check on legislative excess, so needed in today’s unforgiving and harshly punitive political environment.

Latest issue of Federal Sentencing Reporter now available: "New U.S. Sentencing Commission Gets to Work"

As mentioned in this post a few months ago, the latest volume of the  Federal Sentencing Reporter  has a number of issues filled with a number of commentaries providing all sorts of advice for the new US Sentencing Commission.  The first of these FSR issues was titled "21st Century Advice to the New Commissioners" and can be found online here.  The follow-up FSR issue is titled "New U.S. Sentencing Commission Gets to Work," and it includes another set of original articles and related materials providing additional advice for the new USSC.   This new issue is available online here, and it begins with this introductory essay authored by me and Prof Steve Chanenson under the title "A Big Agenda and a Big Question for the New Sentencing Commission." Here is the abstract of this introductory essay:

Recent Senate confirmation of President Biden’s nominees to the U.S. Sentencing Commission transformed a long-hobbled agency into a refreshed expert body with a new opportunity to reexamine federal sentencing law and practice.  The new Commission has no shortage of large and small issues to tackle in the months and years ahead, and it faces not only a full and substantive agenda, but also a big operational question as it gets to work on its priorities.  The Commission has long stressed consensus in developing guideline amendments and related policy work.  But now with a full Commission of seven members when only four Commissioner votes are needed to advance guideline amendments and other formal policy decisions, it is possible that some Commissioners may not see a practical reason for the new Commission to always proceed by consensus and to advance only unanimously supported amendments.  A new Commission with a new willingness to move forward with amendments and policy initiatives, even in the absence of consensus, could prove to be a much bolder Commission.  But is bolder necessarily better, in terms of substantive work products and the ability to advance and implement proposed reforms?  Would a U.S. Sentencing Commission acting without consensus be more politically vulnerable in these divided and divisive times?

Prior related post:

• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

Rounding up some sentencing and punishment stories in an exhausting week that was

A horrible series of mass shootings and the release of awful videos defined the criminal justice week that was.  But there were also a bunch of sentencing and punishment stories of note and interest that I did not have time to cover here.  As is my custom, I will try to catch up with a headline/link round-up:

From the Arizona Republic, "Reformers applaud Hobbs' plans for an oversight commission for troubled Arizona prisons"

From CBS News, "Louisiana "routinely" keeps inmates in custody past release dates, Justice Department finds"

From The Crime Report, "Report: Native Americans Significantly Overrepresented In US Prisons"

From Fox News, "DeSantis proposes making child rapists eligible for execution, allowing death penalty without unanimous jury"

From The Intercept, "Oklahoma Slows Down Frenzied Execution Spree And Launches Probe Into Richard Glossip Case"

From the Marshall Project, "Giving Incarcerated People What They Want — Better News Access"

From NPR, "A man who killed 8 bicyclists in Manhattan is convicted and may face the death penalty"

From New York Daily News, "Brooklyn lawyer who helped firebomb NYPD car during Floyd protests sentenced to a year and day in prison"

From Politico, "Jan. 6 rioter who maced Brian Sicknick sentenced to 80 months"

From Reason, "Federal Inmates Suffering From Unconstitutional Medical Neglect Could Get Relief Under Rule Change"

From Rolling Stone, "Trump’s Killing Spree: The Inside Story of His Race to Execute Every Prisoner He Could"

Rounding up some recent notable reads

A busy week has left me behind on both my reading and blogging on various sentencing and punishment law and policy topics.  So I will try to do a bit of catch up through this round up:

From ABC News, "Alabama extends time for executions, ends automatic review"

From the AP, "Explainer: Biden inaction, mixed signals on death penalty"

From CNN, "Oklahoma’s attorney general says ‘the current pace of executions is unsustainable’ and wants to space them out"

From the FAMM Foundation, "Proposed BOP Rule Will Hurt Struggling Families"

From The Guardian, "Texas prisoners continue hunger strike in protest against solitary confinement"

From the Marshall Project, "How an Illicit Cell Phone Helped Me Take College Courses from Prison"

From Nonprofit Quarterly, "What the US’ Mass Incarceration Regime Costs Black Women"

From Reason, "Sentencing Commission Proposes Restricting Judges' Use of Acquitted Conduct"

From Rick Nevin, "Update: Continuing trend toward zero youth incarceration"

From Spectrum News NY1, "Path to Power: Hakeem Jeffries' push to reform the criminal justice system"

As always, I welcome reader comments on which of these stories or others may merit additional blog time.  It has been fun to see a more active comment space lately, and I hope that always will include readers highlighting new stories or worthwhile reading. 

Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

I have had the great pleasure this Fall to be working on two issues of the Federal Sentencing Reporter with all sorts of commentaries providing all sorts of advice for the all the new members of the US Sentencing Commission.  The first of these issues, titled "21st Century Advice to the New Commissioners," is now available online here.  This issue includes more than a half-dozen original articles authored by judges, federal prosecutors and defenders, and policy advocates.  Prof Steve Chanenson and I authored this introductory essay, titled "Another (Not Quite) Fresh Start," which has this abstract:

As the famed legal scholar Yogi Berra once observed, “It’s like deja vu all over again.”  Those wise words can describe the U.S. Sentencing Commission.  Once again, we find ourselves with a fresh, full-strength Commission brimming with all the promise and excitement that comes with a new opportunity to reexamine federal sentencing law and practice. That is the good news.  What brought us to this moment, however, is the not-so-good news, which merits a brief trip down an unpleasant memory lane.  This is not the first time that the Commission has lacked a quorum.  This latest and longest episode of Commission paralysis strikes us as particularly disturbing because it may reflect a widespread lack of faith in — or at least a notable dearth of enthusiasm for — the work of the Commission and the guidelines enterprise more generally. Like baseball fans on opening day, we remain hopeful about the future.  The new Commissioners are well-regarded professionals who come to their common task in good faith — bringing their own, varied views.  They face a mix of urgent new challenges and important enduring ones.  We add our voices to those over the decades who hope that the Commissioners will think broadly (including by reexamining long-established assumptions) and act boldly.

This October 2022 issue of FSR also includes a series of materials and articles providing "Perspectives on Recidivism and Long Sentences." And, as suggested above, the December 2022 issue of FSR will have additional commentaries providing additional advice for the new USSC.

Rounding up some criminal justice news and notes over holiday week

One easy way to catch up on a number of criminal justice stories and commentaries is to do a round-up of headlines and links. So here goes:

From the AP, "Judge denies 19-year-old's ask to attend father's execution"

From the Arizona Republic, "States under scrutiny for recent lethal injection failures"

From the Atlantic, "The Crime Spike Is No Mystery: By zooming out and looking at the big picture, the question of what causes violence becomes quite answerable."

From Ball and Strikes, "The Supreme Court Is On Another Execution Spree"

From Law Dork, "Failures of capital punishment: Alabama, Missouri, and Oklahoma"

From Rolling Stone, "‘Digitized Love’: How Prison Mail Bans Harm Incarcerated People"

From The Conversation, "The criminal justice system is retraumatizing victims of violent crime"

From the New Republic, "The Supreme Court’s New Second Amendment Test Is Off to a Wild Start"

From the New York Times, "The Search for Beauty in a Prison Cell"

From the Wall Street Journal, "The U.S. Knows How to Reduce Crime: Evidence-based strategies like ‘focused deterrence’ don’t conform to partisan slogans, but they have been shown to work"

Lots and lots more terrific new Inquest essays

Amid a very busy semester, I have not been able to keep up with the steady stream of great pieces regularly posted at Inquest.  Inquest, "a decarceral brainstorm," keeps churning out lots and lots of must-read essays, and I am hoping the coming holiday season provides me more time to read (or re-read) all the great content.  Here are just some of the recent pieces sentencing fans may want to check out:

By Cecilia Bruni & Destiny Fullwood-Singh, "Serial Injustices: Millions rallied behind Adnan Syed, whom the system gave a second look. Many others serving extreme sentences deserve a second look, too."

By Abraham Santiago & Norman Gaines, "A Passport to the Future: Restoring Pell grants for incarcerated students is long overdue. But without meaningful infrastructure, true freedom will remain elusive."

By Cristian Farias, "Revoking Probation: After years of working in the system, a reformer and believer in government gives up on probation and parole."

By J.D. King & Andrea Roth, "Anything But Petty: Misdemeanors are major sources of overcriminalization and punishment. Requiring jurors to screen them could shake up the system."

By Ashley Kilmer & Sami Abdel-Salam, "Pretty and Punitive: For all its aesthetically pleasing attributes, Norway’s Halden Prison is still a prison for the men who must endure it."

By Tomas Keen & Atif Rafay, "Decarcerating from Within: A path for imprisoned writers to offer reasoned analysis on policies affecting the carceral state."

"The Inherent Problem with Mass Incarceration"

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

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration.  This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs.  Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically.  This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes.  On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

Another plug for a podcast for all sentencing fans (and especially defense attorneys)

In this post some months ago, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I thought to put in another plug for his efforts because the latest episode, "A Richer Measurement of Justice: The Novel Lolita Read as a Sentencing Memorandum," starts with a plug for this blog.  In addition, here are just some of many recent episodes sentencing fans ought to enjoy:

Your Voice Matters: Priorities for the Newly Minted Federal Sentencing Guidelines Commission

Prison Consultants and the Myth of the Fixer: How to Separate Substance from Snake Oil

A View From the Bench: Sentencing Expert Alan Ellis Discusses His Interviews with 40+ Judges About What Matters at Sentencing

Presumed Punishable: Antiracism at Sentencing

Draco: Alive & Thriving: Historical and Constitutional Roots of Modern Sentencing

Rounding up some sentencing news and notes for the week that was

Because I was on the road for much of this week, I was unable to blog about all the crime and sentencing stories and commentaries that caught my eye.  (Then again, much of the world was understandably much more concerned with a particular high-profile search than about any sentencing news this week.)  Making up for lost time, here are a few recent items worth finding the time to check out:

From the ABA Journal, "ABA provides 10 principles for ending mass incarceration and lengthy prison sentences"

From Bolts, "Michigan Supreme Court Restricts 'Cruel' Treatment of Youth in Run of Major Decisions"

From the Death Penalty Information Center, "American Psychological Association Overwhelmingly Votes to Adopt Resolution Opposing Death Penalty for Adolescents Aged 18 – 20"

From FiveThirtyEight, "How Democrats And Republicans Think Differently About Crime And Gun Violence"

From Fox News, "I spent time in prison for robbing a bank. Here’s how we prevent ex-cons from going back to jail"

From Fox News, "Former Trump adviser Ja'Ron Smith launches public safety coalition to reduce violent crime"

From The Hill, "Securing public safety without mass incarceration or deepening racial injustice"

From Inquest, "Federal Time: Congress' rush to respond to recent mass shootings repeats historic mistakes that fueled mass incarceration"

From the Phoenix New Times, "Clemency Denied for South Phoenix Man Serving 16-Year Pot Sentence"

From The Sentencing Project, "Repurposing Correctional Facilities to Strengthen Communities"

Visiting "The Visiting Room Project"

This week brought the launch of "The Visiting Room Project," a great new oral history project and website.  This new Guardian article provides an overview under the headline "An extraordinary story of forgiveness: from life without parole to finding grace; A new project gives a voice to people serving life sentences in Louisiana – and brought together two men whose lives collided in tragedy." Here is how the site itself describes the project at this link:

The Visiting Room Project is a digital experience that invites the public to sit face-to-face with people serving life without the possibility of parole to hear them tell their stories, in their own words.  More than five years in the making, the site is the only collection of its kind, containing over 100 filmed interviews with people currently serving life without parole.  The interviews were filmed at Angola, the Louisiana State Penitentiary, which is, in many ways, the epicenter of life without parole sentences worldwide.  As of 2022, more than 55,000 Americans are living in prisons serving life without parole, their lives largely hidden from public view.

Marcus Kondkar and Calvin Duncan created The Visiting Room Project.  Marcus is chair of the sociology department at Loyola University New Orleans, where he researches incarceration and sentencing patterns.  Calvin is an expert in post-conviction law. After being wrongfully convicted and sentenced to life without parole, he served 28½ years in Louisiana prisons before winning his freedom in 2011.  Originally, Marcus and Calvin gathered information on life sentences for an academic audience, but, due to their shared belief that the public needs to hear directly from people who had served decades in prison, their collaboration became The Visiting Room Project, documenting stories of growth behind prison walls.  Arthur Carter, who has served more than 30 years of a life sentence, captured the meaning of The Visiting Room Project during his interview, stating, “If I have to die here, I appreciate this opportunity to be able to let my voice be heard.”

This is a living project that didn’t conclude when the last interview was filmed. Instead, the project team and the men who were interviewed together created The Visiting Room Collaborative to share and document the continuing impact of these life stories.  The Visiting Room Collaborative has two missions.  First, to ensure that the participants’ loved ones and communities have access to their interviews.  Secondly, to create opportunities for public audiences to engage with the project material through exhibits, screenings, and collaborations with artists.  As The Visiting Room Project continues to evolve, this site will be updated with new information.

"Is the Principle of Desert Unprincipled in Practice?"

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

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe).  In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment?  Critics answer no.  They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions.  Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame.  A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment.  The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle.  These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit.  Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established.  Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums.  If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals.  But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

Reviewing another round of great new Inquest essays

I have been making a habit of spotlighting some of the many great pieces regularly posted at Inquest (see recent prior posts here and here and here).  Inquest, "a decarceral brainstorm," keeps churning out lots of new must-read essays, and I continue to struggle to keep up with all the great content.  Here are some recent pieces worth checking out:

By Erin Collins, "The Evidence-Based Trap: Data-driven approaches to reform can reinforce aspects of a system that’s rotten to the core."

By Dan Berger, "Changing Everything: Beyond electing progressive prosecutors, decarceration requires an ambitious, multifaceted struggle at all levels of governance."

By Nebil Husayn, "Juneteenth and Black Liberation: Our government's history of oppression compels us to free those Black revolutionaries aging in our prisons."

By Jessica T. Simes & Jaquelyn L. Jahn, "Policing Health: The impact of Medicaid expansion suggests that keeping people healthy also keeps them from the reach of the criminal legal system."

New podcast for all sentencing fans (and especially defense attorneys)

I am pleased to be able to post about a great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, who I have had the pleasure to work with on a few matters.  Doug Passon created "Set for Sentencing" earlier this year and already has a lot of terrific content posted at this archive. Here are titles/links of episodes to date:

Senators Sell Sentencing Snake Oil at KBJ Confirmation Hearing

Keep Fighting the Good Fight on Compassionate Release!

Disrupting the Dehumanizing Sentencing Process

David Rudolf: American Injustice, The Staircase & Defending Empathy

Telling the Story of Prison at Sentencing

Narrative is Everything at Sentencing!

YouTube Bonus Episode: Sedition Edition!

Understanding Autism at Sentencing

The Devil You Know: The “Funny Math” of the Guidelines, Proposed Fixes, and Lessons Learned From Capital Defense

As these podcast titles suggest, the discussions of sentencing in these episodes tend to come from a defense/defense attorney perspective.  But Doug Passon, whose interests and expertise extend far beyond legal doctrine, brings on an array of guests who are not all lawyers but all have lots of interesting insights for those who are.  I had the honor and the pleasure of taping one of these "Set for Sentencing" episodes a number of weeks ago, and that episode was just posted here (the "Devil You Know" segment).

Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

I am pleased to be able to spotlight here a call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.