Friday, January 21, 2022

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

January 21, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, January 20, 2022

January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing

This morning I saw two interesting, though not especially surprising, reviews of some of federal criminal justice realities being put in the spotlight by the many prosecutions of January 6 rioters.  Here are the headlines, links and an excerpt:

From Zoe Tillman at BuzzFeed News, "Alleged Capitol Rioters Are Getting In Trouble For Guns And Other Violations After Going Home: A common theme popping up in violations among those on pretrial release has come from defendants who are reluctant to give up access to firearms."

[Joshua] Pruitt is one of 11 people charged in connection with the attack on the US Capitol who were ordered into custody after initially being released; eight of those cases involved defendants who violated conditions of their pretrial release.  Prosecutors have a pending request to put another defendant behind bars, and BuzzFeed News identified at least 16 cases where judges tightened restrictions or issued warnings after finding defendants failed to be in full compliance with the letter, or spirit, of their release conditions.

The vast majority of people charged in the Jan. 6 investigation have been allowed to go home while their cases are pending; there are more than 550 defendants with active cases on pretrial release. Most have stayed out of trouble. The small but steady trickle of problems that have cropped up speak to some of the broader challenges judges have faced in deciding when it’s appropriate to send someone back into the community who is accused of being part of the insurrection but isn’t charged with a specific act of violence or a more serious crime.

From Roger Parloff, "Are Judges Showing Their Political Colors in the Jan. 6 Criminal Cases?"

Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.

Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants? The evidence is mixed.  On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.  At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases....

Here’s what the Post did.  It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event.  Then it compared those sentences to the terms the prosecutors had sought.

As an initial matter, the Post found that 49 defendants — two-thirds — received lighter sentences than prosecutors had recommended....

Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.

Upon swiveling the tables — homing in on which judges imposed sentences that were harsher than the prosecutors requested — a mirror-image pattern emerged.  Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.

Some of many prior related posts:

January 20, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

January 20, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Wednesday, January 19, 2022

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. USNo. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

January 19, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, January 18, 2022

Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

As noted in this prior post, last week the Department of Justice announced its new rule for "implementing the Time Credits program required by the First Step Act."  Because this rule is to be applied retroactively and enables perhaps half of all current (and future) federal prisons to earn early release, it is a very big deal while also having lots and lots complicated implementation intricacies.  Helpfully, FAMM has this helpful new four-page document titled "First Step Act Earned Time Credits Rule Explainer," which starts this way:

On January 13, 2022, the BOP published a rule implementing the Earned Time Credits that were included in the First Step Act. There are a lot of questions about the rule, many of which this Explainer attempts to answer.  There is still much to learn, however, and we will continue to update this Explainer as we learn more.  Please understand that we cannot answer your questions about whether you or your loved one is eligible for credits toward pre-release custody or supervised release, among other things. 

Here are some of the essentials from the document provide a window into just some of the particulars:

Who is eligible to apply FSA Time Credits toward pre-release custody or supervised release?

  • People in BOP custody (including those in a halfway house or on home confinement);
  • who are serving a federal sentence;
  • who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA); 
  • who have been assessed as “minimum” or “low” risk for at least one assessment or who can obtain warden approval; and
  • who have earned credits equal to the remainder of their prison term.

Who is barred from either earning FSA Time Credits or applying those credits toward pre-release custody?

  • People serving sentences for convictions under state or District of Columbia law, or who have a final order of removal under immigration law, cannot apply credit toward pre-release custody or supervised release.
  • People serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn credit. In limited circumstances, certain prior convictions may also prohibit one from earning credit....

What do earned FSA Time Credits do?

  • Eligible people who have earned FSA Time Credits may have them applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence).
  • Transfer to supervised release is limited to one year, but people may be transferred to pre-release custody earlier

Prior related post:

January 18, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Monday, January 17, 2022

How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?

On MLK day, I have a tradition of making time to listen to the full "I Have A Dream" speech by Dr. King, which always delivers and always has its own unique power each and every listen.  In recent years, I have also used this day to explore Stanford University's awesome collection of MLK Papers; in posts linked below, I have quoted from various renown speeches and writings with an emphasis on the intersection of the civil rights movement and criminal justice reform.  But this recent news item from Wyoming has me today focused on a specific policy ask for advancing freedom and racial justice:

U.S. Sen. Cynthia Lummis, R-Wyo., became the seventh Republican co-sponsor of the EQUAL Act on Friday, which would fully and finally eliminate the federal sentencing disparity between crack and powder cocaine.

The two substances are virtually identical and equally dangerous, and yet crack carries a penalty that is 18 times that of powder cocaine, according to a news release. The bill passed in the House of Representatives by a margin of 361-66, including 143 Republicans.

Lummis joined Republican Sens. Rob Portman, R-Ohio; Rand Paul, R-Ky.; Thom Tillis, R-N.C.; Lindsey Graham, R-S.C.; Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine, as co-sponsors. Advocates from across the political spectrum said the addition of Lummis is a clear indication that the EQUAL Act has the momentum needed to pass the Senate....

The EQUAL Act has support from groups across the political spectrum, including the Major Cities Chiefs Association, National District Attorneys Association, Americans for Tax Reform, Association of Prosecuting Attorneys, Prison Fellowship, Due Process Institute, Americans for Prosperity, FAMM, Catholic Prison Ministries Coalition, Faith and Freedom Coalition, ALEC Action, R Street Institute, FreedomWorks and Taxpayers Protection Alliance.

With seven notable and diverse GOP senators serving now serving as co-sponsors for the EQUAL Act, I have to believe this bill could easily overcome any filibuster efforts and secure passage on the floor of the Senate (likely by the 5 to 1 margin that it secured passage in the House).  So why is this not getting done ASAP?  To its credit, the Biden Administration has testified in support of the EQUAL Act in the US Senate, but I have not heard Prez Biden himself (or VP Harris) lean into this issue at all.  (Notably, if they want to focus on voting rights as a focal point for civil rights advocacy, they might also really advance the MLK legacy by taking on felony disenfranchisement.  Moreover, they should try to get bipartisan bills like the EQUAL Act passed into law so that people who care about criminal justice reform can better understand why they should bother to vote at all.)  

In part because US Sentencing Commission data reveal that "only" 1,217 persons were sentenced on crack trafficking offenses in FY 2020, which accounts for "only" 7.5% of all offenders sentenced for drug trafficking offenses, the import and impact of the EQUAL Act would not be as huge now as it might have been in years past.  (In FY 2009, just before the Fair Sentencing Act of 2010 reduced the crack/powder disparity from 100-1 to 18-1, there were over 5,000 persons sentenced on crack offenses; indeed, more than 5,000 persons were sentenced each year on federal crack offenses through most of the 2000s.)  Still, the USSC 2020 data show that over 93% of those sentenced for federal crack offenses are persons of color (with 77% black), so that there is still a profound inequitable impact from our federal sentencing scheme that still unfairly treats crack offenses as much more serious than functionally comparable powder offenses.

Links to some prior MLK Day posts:

A few related posts on the EQUAL Act:

January 17, 2022 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

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

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

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

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

The Story of Violence in America by Kellie Carter Jackson

The Problem of State Violence by Paul Butler

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

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

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

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

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

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

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

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

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

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

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

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

"The Paid Jailer: How Sheriff Campaign Dollars Shape Mass Incarceration"

The title of this post is the title of this new report published by Common Cause and Communities for Sheriff Accountability. Here is part of the report's introduction:

In the criminal legal system, the patterns are clear and striking.  Business interests can establish a relationship with sheriffs by sending even small contributions.  Construction companies provide backing to sheriffs who proceed to build new jails.  Health care companies fund campaigns, and then receive multimillion-dollar contracts, with no criteria for results or the health of incarcerated people.  The list of donors with direct conflicts is striking and includes employed deputies, bail bonds companies, weapons dealers, and gun ranges.  It is a system incentivized to jail more people and cast a blind eye to any harm suffered by those within the jails.

Our research, conducted in 11 states, in less than 3 percent of sheriffs offices, documents approximately 13,000 apparent conflicts of interest, primarily between 2010 and 2021.  We have identified upward of $6 million, approximately 40% of all examined contributions, that create potential conflicts of interest.  We have selected these sheriffs using a combination of public interest, and random selection, so these sheriffs are more likely to represent a pattern than exceptional cases....

Sheriffs are politicians who make major decisions about health and safety for millions of Americans — and they shouldn’t be up for sale to the highest bidder.  Alongside carceral reforms and community investment, small-dollar democracy programs can amplify the voices of those most impacted by overincarceration and can help to reenvision a justice system that works for everyone and not just a wealthy few.

January 17, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Sunday, January 16, 2022

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"

January 16, 2022 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, January 14, 2022

Supreme Court takes up procedural issues around challenging execution methods and habeas matters

Via this order list, the US Supreme Court this afternoon granted certiorari in five new cases, two of which involve criminal procedure.  This SCOTUSblog post reviews the high-profile religion case of the bunch and provides this very brief account of the two criminal matters:

Though there were less than a dozen executions throughout the US last year, the Supreme Court now will decided three notable death penalty cases this Term on jury and penalty phase procedures (Tsarnaev), on how executions can be carried out when the condemned seeks a spiritual advisor (Ramirez) and now on how condemned can proceed with challenges to execution methods (Nance).  So while less than .001% of incarcerated persons face execution in recent years, about 5% of the Supreme Court's docket this year involved death penalty matters.

January 14, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Illinois judge decides to acquit teen in sexual assault case to avoid four-year mandatory minimum term

The New York Times has this interesting new article about a troubling example of how mandatory minimum sentences can (and often do) end up distorting the operation of our justices systems.  The full headline of the article provides the essentials: "Judge Tosses Teen’s Sexual Assault Conviction, Drawing Outrage; Drew Clinton, 18, faced four years in prison under Illinois sentencing guidelines. But the judge, Robert Adrian, overturned his conviction this month, saying the sentence was “not just." Here are the details:

Last October, a judge in western Illinois convicted an 18-year-old man of sexually assaulting a 16-year-old girl while she was unconscious at a graduation party.

The man, Drew Clinton, faced a mandatory minimum sentence of four years in prison, but at a hearing earlier this month, Judge Robert Adrian reversed his own decision and threw out the conviction.  The nearly five months Mr. Clinton had served in jail, the judge said, was “plenty of punishment.”

The decision, which was reported by the Herald-Whig of Quincy, Ill., has dismayed organizations that help survivors of sexual assault, the Adams County state’s attorney’s office and the girl who reported the assault, who told a local television station that she was present when Judge Adrian overturned Mr. Clinton’s conviction. “He made me seem like I fought for nothing and that I put my word out there for no reason,” she told WGEM-TV. “I immediately had to leave the courtroom and go to the bathroom. I was crying.”...

Mr. Clinton was charged with criminal sexual assault on June 1, 2021.  The girl reported that he sexually assaulted her after she became intoxicated at a party on May 30, according to court records.  During the bench trial, she testified that she was unconscious and woke up to find a pillow covering her face and Mr. Clinton assaulting her....

Mr. Schnack [a lawyer for Mr. Clinton] argued that mandatory sentences take away a judge’s discretion. “Every individual should be judged by the court in doing its sentence and not by a legislator years and hundreds of miles removed,” he said, according to the transcript.

He also said that prosecutors had not proved their case against Mr. Clinton and that the girl was able to consent.  Mr. Schnack said that she made many decisions that night, including drinking and stripping down to her underwear to go swimming. “They weren’t the best decisions,” he said. “She did know what was going on.”

Judge Adrian said he knew that, by law, Mr. Clinton was supposed to serve time in prison, but in this case, the sentence was unfair, partly because Mr. Clinton turned 18 just two weeks before the party and, until his arrest, had no criminal record.  “That is not just,” Judge Adrian said during the Jan. 3 hearing, according to the transcript. “There is no way for what happened in this case that this teenager should go to the Department of Corrections. I will not do that.”

He said that if he ruled that the sentence was unconstitutional, his decision would be reversed on appeal.  Instead, he said, what he could do was “find that the people failed to prove their case.” Judge Adrian chastised the parents and other adults who he said provided liquor to the teenagers at the party and failed “to exercise their parental responsibilities.”...

Carrie Ward, the chief executive of the Illinois Coalition Against Sexual Assault, said the judge’s comments and his decision to throw out Mr. Clinton’s conviction were “a clean and clear example of victim blaming.” By highlighting the girl’s clothing and chastising the hosts of the party, the judge shifted “100 percent of the blame from the perpetrator, from the actual person who committed the sexual assault, to everyone else, including the victim,” Ms. Ward said.

I am troubled that the judge here felt compelled to nullify guilt because he was unable or unwilling to develop an argument that a four-year prison term would be unjust and possibly illegal. I do not know Illinois law well enough to know if state constitutional jurisprudence or other doctrines could have provided a basis for the judge to rule that he had to be able to give effect to the defendant's youth and other mitigating factors. But if the judge made a compelling case for a more just sentence, perhaps prosecutors would not have appealed or perhaps appellate courts would have embraced the analysis. Instead, we have a case in which a judge seems to want to believe that two legal wrongs make a right.

January 14, 2022 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Compassionate Release and Decarceration in the States"

The title of this post is the title of this notable new paper authored by Renagh O'Leary now on SSRN. Here is its abstract:

Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest.  Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration.  Compassionate release early release from prison based on a serious or terminal medical condition"is the only early release mechanism available in nearly every state. This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states.

So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population.  The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release.  People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release.  They are also the age group most likely to be incarcerated for violent convictions.  This Article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release even when they are not outright barred by their convictions.  This Article argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions.  This Article models this approach with concrete suggestions for how states can reform their compassionate release measures to reach the hardest cases.

January 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, January 13, 2022

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

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

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

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

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

Prior related posts:

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

"A Call to Reform Federal Solitary Confinement"

The title of this post is the title of this effective new report authored by Ilanit Turner and Noelle Collins with the Texas Public Policy Foundation.  Here is part of its executive summary (with cited removed):

Federal solitary confinement is in desperate need of repair. After a 40-year spike in federal incarceration rates beginning in 1980 has tapered off, a bipartisan consensus for solitary confinement reform is finally starting to crystallize.

What was once considered a last-resort disciplinary practice in federal prisons has morphed into a default option when other correctional and administrative protocols fail on their first try.  This paper is the latest installment in the Texas Public Policy Foundation’s series of publications entailing prescriptions for local, state, and federal prison reform. Our research is especially timely as prison officials continue to misuse segregated housing units for medical isolation to combat COVID-19.  Because prison officials know they have limited alternatives to curb transmission, improperly using COVID-19 as a justification for solitary confinement is apparently a tempting option.  Warehousing sick inmates poses a unique challenge as those who report symptoms are unjustifiably forced to endure an experience known to cause mental and physical harm.

The current landscape of solitary confinement data released on the Federal Bureau of Prisons (BOP) website is insufficient.  The information on the precise order of operations for the types of infractions that land inmates in solitary is vague, publications of hearings considered for segregation are unavailable, and it is nearly impossible to determine the total length of time served in solitary confinement by each inmate.  Holding BOP accountable for this information should be emphasized if change is to be effected.

Any information that is known about solitary confinement reaches the outside world a day late and a policy short.  Charles Dickens (1842), a notable critic of the American penitentiary system, alluded to the effect of ignorance of solitude in his prescient observation a century and a half earlier, “this slow and daily tampering with the mysteries of the brain, [is] immeasurably worse than any torture of the body… and therefore I denounce it, as a secret punishment which slumbering humanity is not roused up to stay”. Little has changed. The prolonged effects of solitary confinement take the form of irreversible physical and mental health disorders.  When isolated inmates are granted the long-awaited second chance for release right after solitary confinement, they reoffend in rates disproportionately higher than the general prison population. Long durations in segregation exacerbate mental illnesses, leading to bouts of psychosis.  This prevents inmates from integrating back into the labor market, much less society in general, and is correlated with higher rates of criminal episodes.

The Foundation offers a list of policy solutions to improve the status quo of federal solitary confinement.  First and foremost, data transparency is essential. Pulling back the bureaucratic curtain of the federal prison system will reinforce administrative rectitude when deciding to use solitary confinement. Enhancing due process and ongoing review is another way to redirect prison officials to alternative punitive measures.  The BOP should also consider expanding educational and rehabilitative programming for inmates in isolation, as these changes will reduce occupancy and recidivism rates with a single policy adjustment.  Lastly, the BOP system owes it to the public to reduce violence and suicide for inmates in solitary by improving mental health assessments.  Addressing these issues can also reveal areas of endemic corruption that lead to further misuse of this practice. 

January 13, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

January 13, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

Wednesday, January 12, 2022

"No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action"

The title of this post is the title of this notable new essay authored by Andrew Manuel Crespo now available via SSRN.  Here is its abstract:

The American penal system is a system of massive, oppressive, racially unjust incarceration.  It is also, to quote the Supreme Court, a “system of pleas.”  The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths.  Mass incarceration is a predictable result.

But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point.  That Achilles heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power.  Organized to act together, this community has unique resources. Most notably, they have the power to say “not guilty” when asked “how do you plead?” If done together, this simple but profound act of resistance would grind the penal system to a halt.  Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial.  This fact is what makes plea bargaining so essential to mass incarceration in the first place.  Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially radical transformative power — a decarceral power, a democratic power — that arises from the penal system’s massive overextension.

Susan Burton, a formerly incarcerated organizer, floated this idea in the pages of the New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation.  This essay is the first installment of a broader project that aims to conceptualize, strategize, and test the limits of Burton’s idea. The immediate goals here are to chart some of the contours of Burton’s core insight — examining both its promise and its hurdles — while marking some key questions for future exploration.

January 12, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (24)

Split New Jersey Supreme Court rules NJ constitution requires allowing juvenile offenders "to petition for a review of their sentence after they have served two decades in prison"

A helpful reader ensured I did not miss the fascinating New Jersey Supreme Court ruling in NJ v. Comer, A-42-20)(NJ Jan 10, 2022) (available here), regarding limits on extreme juvenile sentencing.  The start of the opinion for the Court provide the context and the essentials of the ruling:

This appeal raises challenging questions about the constitutional limits that apply to sentences for juvenile offenders.

The law recognizes what we all know from life experience -- that children are different from adults.  Children lack maturity, can be impetuous, are more susceptible to pressure from others, and often fail to appreciate the long-term consequences of their actions. Miller v. Alabama, 567 U.S. 460, 477 (2012).  They are also more capable of change than adults. Graham v. Florida, 560 U.S. 48, 68 (2010).  Yet we know as well that some juveniles -- who commit very serious crimes and show no signs of maturity or rehabilitation over time -- should serve lengthy periods of incarceration.

The issue before the Court is how to meld those truths in a way that conforms to the Constitution and contemporary standards of decency.  In other words, how to impose lengthy sentences on juveniles that are not only just but that also account for a simple reality: we cannot predict, at a juvenile’s young age, whether a person can be rehabilitated and when an individual might be fit to reenter society.

The question arises in the context of two juveniles who committed extraordinarily serious crimes for which they received long sentences.  In one case, the juvenile offender, who was convicted of felony murder, will not be released for three decades and cannot be considered for parole throughout that time.  In the other appeal, it will be more than four decades before the 14-yearold offender, convicted of purposeful murder, will first be eligible to be considered for parole.

Both juveniles argue that their sentences violate federal and state constitutional provisions that bar cruel and unusual punishment.  See U.S. Const. amend. VIII; N.J. Const. art. I, ¶ 12.  They ask the Court to find that a mandatory sentence of at least 30 years without parole, which N.J.S.A. 2C:11- 3(b)(1) requires, is unconstitutional as applied to juveniles.

We decline to strike that aspect of the homicide statute. But we recognize the serious constitutional issue defendants present under the State Constitution. The Court, in fact, anticipated the question in 2017 and asked the Legislature to consider amending the law to allow juvenile offenders who receive sentences with lengthy periods of parole ineligibility to return to court years later and have their sentences reviewed. State v. Zuber, 227 N.J. 422, 451-53 (2017).

Today, faced with actual challenges that cannot be overlooked, we are obligated to address the constitutional issue the parties present and cannot wait to see whether the Legislature will act, as the State requests. That approach is consistent with the basic roles of the different branches of government.  The Legislature has the responsibility to pass laws that fix the range of punishment for an offense; the Judiciary is responsible to determine whether those statutes are constitutional.  Under settled case law, courts also have the authority to act to protect statutes from being invalidated on constitutional grounds.

Here, the statutory framework for sentencing juveniles, if not addressed, will contravene Article I, Paragraph 12 of the State Constitution.  To remedy the concerns defendants raise and save the statute from constitutional infirmity, we will permit juvenile offenders convicted under the law to petition for a review of their sentence after they have served two decades in prison.  At that time, judges will assess a series of factors the United States Supreme Court has set forth in Miller v. Alabama, which are designed to consider the “mitigating qualities of youth.” 567 U.S. at 476-78 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

We provide for the hearing, rather than strike the homicide statute on constitutional grounds, because we have no doubt the Legislature would want the law to survive. The timing of the hearing is informed by a number of sources, including acts by the Legislature and other officials.

At the hearing, the trial court will assess factors it could not evaluate fully decades before -- namely, whether the juvenile offender still fails to appreciate risks and consequences, and whether he has matured or been rehabilitated.  The court may also consider the juvenile offender’s behavior in prison since the time of the offense, among other relevant evidence.

After evaluating all the evidence, the trial court would have discretion to affirm or reduce the original base sentence within the statutory range, and to reduce the parole bar to no less than 20 years.  A juvenile who played a central role in a heinous homicide and then had a history of problematic behavior in prison, and was found to be incorrigible at the time of the later hearing, would be an unlikely candidate for relief.  On the other hand, a juvenile who originally acted in response to peer pressure and did not carry out a significant role in the homicide, and who presented proof at the hearing about how he had been rehabilitated and was now fit to reenter society after two decades, could be an appropriate candidate for a lesser sentence and a reduced parole bar.

The Appellate Division rejected the juveniles’ constitutional claims. We therefore reverse and remand both matters for resentencing. We express no opinion on the outcome of either hearing.

Three Justices dissented from this holding by the NJ Supreme Court, and the dissenting opinion begins this way:

The majority today holds that the New Jersey Constitution requires a 20- year lookback period for juvenile offenders who were waived to adult court and tried and convicted as adults of homicide offenses.  We acknowledge our colleagues’ view that the New Jersey Constitution permits our intervention here.  But we are not legislators imbued by our Constitution with such authority. In our view, the majority today act “as legislators” instead of as judges. Gregg v. Georgia, 428 U.S. 153, 175 (1976). Thus, we respectfully dissent.

The majority asserts that it is required to act by our Constitution and landmark juvenile sentencing cases from both this Court and the United States Supreme Court. See Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); State v. Zuber, 227 N.J. 422 (2017).  The cited cases hold that, for the purpose of sentencing, the Constitution requires courts to treat juveniles differently and to consider certain factors before sentencing them to life without parole or its functional equivalent.  We believe that our current sentencing scheme fulfils that constitutional mandate.  Thus, it is not our prerogative to impose an additional restriction on juvenile sentencing.

In our view, a 30-year parole bar for juveniles tried as adults and convicted of homicide conforms with contemporary standards of decency, is not grossly disproportionate as to homicide offenses, and does not go beyond what is necessary to achieve legitimate penological objectives.

Accordingly, we believe that the majority’s imposition of a 20-year lookback period for homicide offenses is a subjective policy decision rather than one that is constitutionally mandated.  As such, it must be left to the Legislature, which could have considered all of the factors the majority has, and some it has not.  Instead, the majority joins a small minority of states with lookback periods imposed by judicial fiat rather than by statute.

January 12, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Original Criminal Jury"

The title of this post is the title of this notable new paper authored by Jeff Hetzel recently posted to SSRN.  Here is its abstract:

In early America, the criminal jury decided matters of law.  The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises.  The presiding judge instructed the jury that it had the power to decide matters of law.  Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury.  Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution.  But a careful examination of early practice reveals that the jury held no more power to nullify than it does today.  Rather, the early American jury held the power to do what judges today are expected do — to decide what the law means without deciding its morality.

This Article reintroduces this forgotten — yet still constitutionally binding — model of the criminal jury.

January 12, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 11, 2022

"Compassionate Release as Compassionate Decarceration: State Influence on Federal Compassionate Release and the Unfinished Federal Reform"

The title of this post is the title of this new paper authored by Chun Hin Jeffrey Tsoi now available via SSRN. Here is its abstract:

The First Step Act's (FSA) compassionate release reform was a “modest but necessary” step; the pandemic and the threat it posed to the incarcerated population ought to prompt reflections on what the next steps should be.  This Essay is intended to serve as both a brief historical review of state influence on federal compassionate release, and as a reflection on the unfinished compassionate release reform in terms of DOJ’s execution. 

Part I briefly surveys the trajectory of 18 U.S.C. § 3582(c) from the Sentencing Reform Act (SRA) to the Prisoner-initiated & Court-ordered (PICO) compassionate release provision in the FSA, and its application in the pandemic.  Part II supplements the compassionate release literature by exploring the history of PICO compassionate release in state law as a backdrop of the long-awaited federal reform allowing prisoners to petition for their own release, and it proposes that state practices, especially that of New Jersey, might have influenced the introduction and passage of FSA in part through the Model Penal Code.  Part III suggests that the arc of compassionate release reform in federal law is nevertheless unfinished, with the Department of Justice’s (DOJ) objection practices being part of the necessary change.  Using data and cases from the District of Columbia, whose PICO compassionate release statute is modeled after federal law and clearly intended as a response to the pandemic, this Essay proposes that the DOJ's perspective and practices must change to adapt to the essential purpose of compassionate release: addressing mass incarceration in America with compassion.

January 11, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New paper explores "Reimagining Judging" in the US "after a decades long love affair with prison"

Retired US District Judge Nancy Gertner, who is now teaches at Harvard Law School, has this great new 44-page report titled "Reimagining Judging" released as part of the the Square One Project's Executive Session on the Future of Justice Policy.  This press release and this executive summary provides an overview of the report, but my post title draws on this passage from the report that helps frame how Judge Gertner approaches this critical project:

Countless papers have been written about the perils of unstructured discretion — discrimination and bias chief among them (Frankel 1973).  But I want to raise another issue: The unique problem of giving judges discretion in sentencing at this moment in time, after a decades long love affair with prison.  How can judges who have been schooled in the extraordinarily punitive system that produced mass incarceration for the past thirty years suddenly operate in a system that — one hopes — will reflect wholly different premises?  How can a judicial system based on one set of assumptions suddenly enact or apply a wholly different approach?  These are precisely the same questions we have asked of police, correctional officers, and prosecutors in a changed criminal legal system.  Is change possible in juvenile correctional facilities that reflected hard-nosed punishment, too often accompanied by physical and sexual abuse scandals?  Is change possible with police schooled to be warriors, not guardians?  Although surprising at first blush, assuming that law-following judges will enforce such institutional changes — much like with these other actors — is not enough.

In this paper, I touch first on judicial resistance to recent modest criminal law reforms, one example of what I have described elsewhere as the phenomenon of “the habits of mass incarceration” (Gertner 2020).  Then I sketch out — very briefly — the factors that make judges resistant to change: constraints that apparently limit a judge’s horizons, cognitive influences that they ignore, and political pressures that are unexamined.  Finally, I propose a way to effect change — a very preliminary suggestion.

Several caveats: I am generalizing from my experiences from 17 years in the federal system.  This is not an empirical paper.  Not all judges fit these descriptions.  Nor is this paper about what needs to be changed in the broader criminal legal system; others are dealing with those profound and overarching questions.  Finally, the message here is not that judicial change is impossible, only that it is difficult.  Any “reimagining project” must take judicial impediments to change into account; this paper considers how to revamp the criminal legal system through the lens of those who must apply that system’s rules.

January 11, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (2)

Monday, January 10, 2022

Advocacy groups giving poor first-year grades to Prez Biden on criminal justice reform

This new Law360 piece, headlined "At 1-Year Mark, Groups Discontent With Biden Justice Reform," reports on an interesting effort to "grade" the Biden Administration for its criminal justice record at the end of its first year. I recommend the piece in full, and here are excerpts:

President Joe Biden's progress on criminal justice reform after nearly one year in office has dissatisfied some advocacy leaders who were once hopeful that the president would prioritize this reform.

During Biden's presidential campaign, he made more than 100 criminal justice reform promises, including to end mandatory minimum prison sentences, stop use of the death penalty and eliminate cash bail. However, the president hasn't fulfilled these reforms or many of his other justice campaign promises, advocates say.

In a recent Law360 poll of 13 organizations, seven organizations gave Biden a grade of "D" or "F" for his policy and legislative actions in his first year, and the majority of respondents reported being "dissatisfied" or "very dissatisfied" with his reform progress....

The 13 organizations were mixed about Biden's rhetoric on criminal justice reform. Roughly half of them gave the president a grade of "A" or "B" and the other half gave him a grade of "D" or "F." One organization gave his rhetoric a grade of "C."

But the majority of organizations gave Biden's overall progress on criminal justice reform in his first year a grade of "D" or "F." Three organizations said his overall progress was "above average" or "very good" and two groups said his progress was "average."

In the early days of Biden's administration, the president did take quick action on justice reform by issuing an order phasing out the use of privately operated prisons. Later, he also restored the U.S. Department of Justice's Office for Access to Justice, implemented restrictions on chokeholds and no-knock warrants for federal law enforcement and opened up access to re-entry services for people who were formerly incarcerated.

After much pleading from criminal justice reform groups, Biden's Justice Department reversed course on a previous decision and said in December that individuals who were released on home confinement because of the COVID-19 pandemic could stay out of prison.

Advocates, however, say that in Biden's first year, the president missed several opportunities to make key reforms including ending unjust prison sentences through the clemency process and dispelling the narrative that justice reforms will lead to more crime....

A spokesperson for the White House did not respond to a request for comment about Biden's progress on criminal justice reform.

According to Law360's poll, the majority of respondents were "hopeful" or "very hopeful" that when Biden first took office, he would prioritize criminal justice reform. However, after Biden's first year in office, only three organizations reported that they were "hopeful" or "very hopeful" the president would prioritize justice reform during the rest of his administration....

Not all advocates have lost hope though. Miriam Krinsky, a poll participant and executive director of Fair and Just Prosecution, told Law360 that she remains hopeful because of the people that Biden has appointed to be federal prosecutors, sit on the federal judicial bench and lead the DOJ. "I think [Biden] is taking seriously the need to reset the legal system, and putting people in place in criminal justice positions that are thinking differently," Krinsky said.

A few of many prior recent related posts:

January 10, 2022 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Spotlighting guideline circuit split, two Justices express "hope" US Commission will be back "in near future"

The Supreme Court issued this lengthy order list this morning which, as is typical, is mostly full of lots and lots of denials of certiorari. The Justices granted review in three cases (one involving habeas procedure) and called for the Solicitor General's views in two other cases.  But, at the very end of the 24-page order list without much of interest for sentencing fans, was a notable short statement by Justice Sotomayor, joined by Justice Barrett, respecting the denial of certiorari in Guerrant v. US, No. 21-5099. Here are highlights:

This petition implicates a split among the Courts of Appeals over the proper definition of a “controlled substance offense,” and, accordingly, over which defendants qualify as career offenders.... Defendants in [most Circuits] qualify as career offenders for federal sentencing purposes even if their only prior offenses involved substances not prohibited under federal law. As a result, they are subject to far higher terms of imprisonment for the same offenses as compared to defendants similarly situated in the Second or Ninth Circuits.

It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application of the Guidelines. Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  In March 2021, I wrote concerning an unresolved Circuit split over the proper interpretation of a Guideline. See Longoria v. United States, 592 U. S. ___. The Sentencing Commission lacked a quorum of voting members then, and it still does today.  At this point, the Sentencing Commission has not had a quorum for three full years.  As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences. I hope in the near future the Commission will be able to resume its important function in our criminal justice system.

I am intrigued and pleased to see Justice Barrett now joining Justice Sotomayor in flagging the need for a functioning US Sentencing Commission to address problematic circuit splits.  But it bears noting that plenty of circuit splits, including this one, pre-date the USSC's loss of a quorum.  Even when fully functioning, the USSC has never been able to resolve all challenging circuit conflicts, and I share Dawinder Sidhu's view that we should all "be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines." (See full article here.) 

I think it is the responsibility of the USSC and SCOTUS to help "ensure fair and uniform application of the Guidelines."  And, as Justice Sotomayor notes, we are now a full three years into a quorum-less Commission and still do not even have Commissioner nominees.  Moreover, even if Prez Biden were to nominate new Commissioners in the next few weeks (which seems unlikely) and the Senate were to confirm those nominees quickly (which seems unlikely), a new Commission could not "fix" this broken guideline until Nov 2022 at the earliest (and Nov 2023 or later is much more realistic).  But SCOTUS could, and arguably should, "solve" this issue and others with a per curiam opinion that advances consistency for the time being subject to future review by a future Commission.

Because the Supreme Court has largely abdicated its role in guideline interpretation for over three decades now, I am not surprised that it is not now trying to fill the gap created by a quorum-less Commission.  But I wish there were more than just a couple of Justices willing to do a lot more than just talk up their "hope" that another part of the federal judiciary would be able to soon help advance sentencing justice. 

January 10, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Saturday, January 08, 2022

"Count the Code: Quantifying Federalization of Criminal Statutes"

SR-count-the-code-charts-page6The title of this post is the title of this fascinating new Heritage Foundation report authored by GianCarlo Canaparo, Patrick McLaughlin, Jonathan Nelson and Liya Palagashvili. Here is the report's summary and "key takeaways":

SUMMARY

The authors have developed an algorithm to quantify the number of statutes within the U.S. Code that create one or more federal crimes.  As of 2019, we found 1,510 statutes that create at least one crime.  This represents an increase of nearly 36 percent relative to the 1,111 statutes that created at least one crime in 1994.  Although the algorithm cannot precisely count discrete crimes within sections, we estimate the number of crimes contained within the Code as of 2019 at 5,199.  These findings support the conclusion that the number of federal crimes has increased, while also bolstering concerns that federal crimes are too diffuse, too numerous, and too vague for the average citizen to know what the law requires.

KEY TAKEAWAYS

  • This study quantifies the number of federal statutes that create a crime and estimates 5,199 federal crimes within the United States Code.
  • From 1994 to 2019, the number of sections that create a federal crime increased 36 percent.
  • Because many of these crimes apply to conduct no rational person would expect to be a crime, the government is potentially turning average Americans into criminals.

This report, and its useful but brief discussion of the "Relationship Between Federalization of Crime and Federal Prisoners" which includes the graphic reprinted above, got me to thinking about how hard it would be to effectively quantify and assess changes in federal sentencing law over the last 35 years since the passage of the Sentencing Reform Act of 1984.  I was thinking about this challenge because, based on a quick read, I cannot quite tell if the algorithm used in this study picked up only federal statutes that created new crimes or also captured statutes that only changed the penalties for existing crimes (which happens fairly often).

Notably, from 1984 through 2009, most new federal sentencing laws enacted by Congress increased statutory penalties (often in complicated ways).  But the 2010 Fair Sentencing Act and the 2018 FIRST STEP Act serve as recent examples lowering statutory penalties (also in complicated ways).  And then, of course, starting in the late 1980s, federal law was significantly shaped by yearly federal sentencing guideline changes, some of which were directed by Congress.  There have been over 800 guideline amendments, some minor (and mandatory before 2005), others major (and advisory after 2005), some even retroactive.  And, thanks to Apprendi-Booker, ACCA interpretations and other jurisprudential messes, the Supreme Court and lower federal courts have been "changing" federal sentencing law in various significant ways almost continuously over this period.

January 8, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Thursday, January 06, 2022

"Error Aversions and Due Process"

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

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

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

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

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

Wednesday, January 05, 2022

Head of federal Bureau of Prisons has resigned (though will stay on pending a successor)

As reported in this new AP piece: "The director of the federal Bureau of Prisons is resigning amid increasing scrutiny over his leadership in the wake of Associated Press reporting that uncovered widespread problems at the agency, including a recent story detailing serious misconduct involving correctional officers." Here is more:

Michael Carvajal, a Trump administration holdover who’s been at the center of myriad crises within the federal prison system, has told Attorney General Merrick Garland he is resigning, the Justice Department said. He will stay on for an interim period until a successor is in place. It is unclear how long that process would take.

His exit comes just weeks after the AP revealed that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. The AP stories pushed Congress into investigating and prompted increased calls to resign by lawmakers, including the chairman of the Senate Judiciary Committee....

The administration had faced increasing pressure to remove Carvajal and do more to fix the federal prison system after President Joe Biden’s campaign promise to push criminal justice reforms. The Bureau of Prisons is the largest Justice Department agency, budgeted for around 37,500 employees and over 150,000 federal prisoners. Carvajal presided over an extraordinary time of increased federal executions and a pandemic that ravaged the system.

After the AP’s story was published in November, Senate Judiciary Committee Chairman Dick Durbin demanded Carvajal’s firing. Several congressional committees had also been looking into Carvajal and the Bureau of Prisons, questioning employees about misconduct allegations.

In a statement, Durbin, D-Ill., said Carvajal “has failed to address the mounting crises in our nation’s federal prison system, including failing to fully implement the landmark First Step Act,” a bipartisan criminal justice measure passed during the Trump administration that was meant to improve prison programs and reduce sentencing disparities.

“His resignation is an opportunity for new, reform-minded leadership at the Bureau of Prisons,” Durbin said.

Carvajal, 54, was appointed director in February 2020 by then-Attorney General William Barr, just before the COVID-19 pandemic began raging in federal prisons nationwide, leaving tens of thousands of inmates infected with the virus and resulting in 266 deaths.

COVID-19 is again exploding in federal prisons, with more than 3,000 active cases among inmates and staff as of Wednesday, compared with around 500 active cases as of mid-December. All but four BOP facilities are currently operating with drastic modifications because of the pandemic, with many suspending visiting.

Especially with implementation of the FIRST STEP Act on tap (discussed here), on top of all the other challenges prisons face amid a pandemic, leading BOP is anything but an easy job these days.  But I share Senator Durbin's hope that "new, reform-minded leadership" at the BOP will be forthcoming.

January 5, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (4)

Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits

Walter Pavlo has this extended new Forbes piece detailing some of the nettlesome issues that surround implementation of various parts of the FIRST STEP Act. The piece is headlined "Implementation Of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court," and here are excerpts:

President Donald Trump signed one of the most sweeping criminal justice reform laws, The First Step Act (FSA), into law on December 21, 2018.  Since then, its interpretation has been debated and argued, mostly behind closed doors in Washington, on how to fully implement it.  One lesser defined part of FSA is whether or not those in custody within the Federal Bureau of Prisons (BOP), could earn credits for participation in classes and meaningful activities in order to get time reduced off of their sentence.  COVID’s wrath on the BOP slowed FSA implementation but we are on the cusp of discovering the extent of the law’s effects on those currently incarcerated....

By January 24, 2022, the BOP is under a mandate to have the FSA fully implemented.  Under the FSA, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FSA Time Credits for every 30 days of program participation.  Minimum and low-risk classified prisoners who successfully complete recidivism reduction programming and productive activities and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn up to an additional 5 days of FSA Time Credits for every 30 days of successful participation.  However, prisoners serving a sentence for a conviction of any one of multiple enumerated offenses are ineligible to earn additional FSA Time Credits regardless of risk level.  It is complicated.

Many of the BOP’s facilities are understaffed and pressures of COVID combined with prisoner lockdowns has led many institutions to suspend or delay many of the programs that could have counted toward FSA credits.  Now an internal memorandum posted at some prison camps across the country is causing a stir because of how sweeping the FSA may be for prisoners.  The memo stated [with caveats and exclusions]: "Under the First Step Act of 2018 (FSA), eligible inmates may earn Federal Time Credit (FTC) for successful participation in Evidence-Based Recidivism Programs and Productive Activities.... Inmates are now eligible to earn FTC retroactively back to December 21, 2018; this award will be based on criteria established by BOP."...

Far from clarifying things, the implementation of FSA, based on this limited amount of information, will be almost impossible over the near term.  This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement and supervised release.  It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system.

Those in prison want to be out of the institution.  With many programs suspended in institutions, prisoners have been looking to “Productive Activities,” like a job in the prison, as a means to gain FSA credits.  However, interpretation of that term has been the subject of discussion ever since FSA was passed.  The list of program classes eligible for credit is limited and the hours associated with each one must be based on a need assessment of the prisoner.  It is unknown how a BOP case manager can look back until 2018 for classes (programs) that did not even exist because there was no FSA until December 2018.  In order for “Productive Activities” during the time frame of 2018-2021, it must mean that the BOP is interpreting a broad definition of the term ... I know the prisoners’ interpretation....

Indeed, there will be many prisoners on January 15, 2022 who are being detained unlawfully if the law comes into effect on that day and they are still incarcerated ... that is going to happen.  Thousands will file lawsuits whether they are in prison, halfway houses, home confinement or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit.  Rather than Trump’s FSA being a law, it is going to be subject to interpretation by judges across the country.

While this information is welcome news to those incarcerated, it is also a monumental task for BOP case managers.  Case managers are primarily responsible for moving inmates from prison to halfway houses and home confinement.  It requires a tremendous amount of paperwork and coordination, often taking months.  There is also the additional issue of capacity at halfway houses and monitoring.  This is going to be more complicated than anyone ever imagined.

January 5, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

Tuesday, January 04, 2022

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

January 4, 2022 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, January 03, 2022

"Racial Attitudes and Criminal Justice Policy"

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

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

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

Will SCOTUS take up challenge to Georgia's remarkable standard for implementing Eighth Amendment's ban on executing the intellectually disabled?

The question in the title of this post is prompted by this new Sidebar piece by Adam Liptak for the New York Times about Georgia's unique way for (not quite) protecting the intellectually disabled from an unconstitutional execution. The full piece is a great read under this full headline: "Language Mistake in Georgia Death Penalty Law Creates a Daunting Hurdle: The Supreme Court will decide whether to hear a challenge to the law, which requires that defendants in capital cases who are intellectually disabled prove it 'beyond a reasonable doubt' — a phrase that was inserted in error."  Here are excerpts:

The U.S. Supreme Court will soon decide whether to hear [an Eighth Amendment] case, which challenges a Georgia law that places an extraordinary burden on capital defendants seeking to be spared execution.  In the process, the justices could clarify whether it is just the words or also the music of their precedents that binds lower courts.

The case concerns Rodney Young, who was convicted in 2012 of killing the son of his estranged girlfriend.  Mr. Young grew up in New Jersey, where his schools classified him, in the language of the time, as “mentally retarded.”  These days, they would call him intellectually disabled.

A 2002 Supreme Court decision, Atkins v. Virginia, ruled that the Eighth Amendment forbids putting intellectually disabled people to death.  But the Georgia law at issue in the case, unique in the nation, requires capital defendants seeking to be spared execution to prove they are intellectually disabled beyond a reasonable doubt.

That is the standard that ordinarily applies to the government in criminal cases. It is intended to be hard to meet and, in the context of prosecutions, is meant to tolerate letting some guilty people go free rather than risk sending innocent ones to prison. The Georgia law inverts this dynamic, tolerating the executions of some intellectually disabled people.... The Atkins decision largely let states decide who qualified as intellectually disabled. But two later decisions, in 2014 and 2017, struck down measures creating, as Justice Anthony M. Kennedy put it, “an unacceptable risk that persons with intellectual disability will be executed.”

The Georgia law has a curious origin story.  Enacted in 1988, it was the first in the nation to ban the execution of intellectually disabled people, predating the Atkins decision by 14 years. But it was drafted in haste. “I dropped the ball,” Jack Martin, one of the provision’s drafters, told the Georgia House of Representatives in 2013. He and his co-author, Mr. Martin said, had not meant to impose a reasonable doubt standard, but they put a key clause in the wrong place. “It was sloppy draftsmanship, pure and simple,” Mr. Martin said. “I don’t think anybody intended that to happen.”

Almost every other state requires defendants to prove they are intellectually disabled by just a preponderance of the evidence — that is, by showing it to be more likely than not. The difference in the two standards matters, lawyers with the American Civil Liberties Union, which represents Mr. Young, told the Supreme Court in a recent petition asking the justices to hear his case. “In the states that apply a preponderance-of-the-evidence standard, approximately one-third of those asserting that they are intellectually disabled succeed in invoking the Eighth Amendment’s protection,” they wrote. “In Georgia, not a single person convicted of intentional murder has prevailed at trial in establishing that he is intellectually disabled.”...

Dissenting from the Georgia Supreme Court’s decision upholding the state law, Justice Charles J. Bethel said simple logic demonstrated that the law created, in the words of the U.S. Supreme Court, “an unacceptable risk” that some intellectually disabled people would be executed. In his concurring opinion, Justice Nahmias, who served as a law clerk to Justice Antonin Scalia and is now the chief justice of the Georgia Supreme Court, acknowledged that the question in the case was a close one and that the reasoning in U.S. Supreme Court precedents “certainly casts doubt on this state’s uniquely high standard of proof.”

Justice Nahmias added another consideration, one seemingly grounded in a realistic assessment of the U.S. Supreme Court’s new conservative supermajority. “If I had to guess today,” he wrote, “I would say that it is likely that if the United States Supreme Court, as currently comprised, is called on to decide whether Georgia’s beyond-a-reasonable-doubt standard for proof of intellectual disability violates the Eighth Amendment, a majority of the justices would not extend the holdings” of the decisions in 2014 and 2017 “to strike down our state’s statute, notwithstanding the reasoning of the majority opinions in those two cases.”

January 3, 2022 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, December 31, 2021

Colorado Gov Polis demonstrates, with high-profile commutation and mass pardons, the many powers of clemency

This press release from yesterday, headlined "Governor Polis Grants Clemency, Including Marijuana Pardons," documents that it is never too late in the year for an executive leader to lead with the clemency pen.  Here are a few highlights from the release:

Governor Jared Polis announced that he has granted three commutations, fifteen individual pardons, and signed an Executive Order granting 1,351 pardons for convictions of possession of two ounces or less of marijuana.... 

The marijuana pardon applies to state-level convictions of possession for two ounces or less of marijuana, as identified by the Colorado Bureau of Investigation (CBI). The individuals who have these convictions did not need to apply for pardons, and the Governor’s Office has not conducted individual assessments of the people who have been pardoned through this process.  Individuals convicted of municipal marijuana crimes, or individuals arrested or issued a summons without a conviction, are not included in the pardon.... 

“Adults can legally possess marijuana in Colorado, just as they can beer or wine. It’s unfair that 1,351 additional Coloradans had permanent blemishes on their record that interfered with employment, credit, and gun ownership, but today we have fixed that by pardoning their possession of small amounts of marijuana that occurred during the failed prohibition era,” said Governor Polis.

The Governor also granted commutations to Ronald Johnson, Nicholas Wells, and Rogel Aguilera-Mederos. Mr. Johnson is granted parole effective January 15, 2022, with terms and conditions of parole to be set by the Parole Board. Mr. Wells is parole eligible on January 15, 2022. Mr. Aguilera-Mederos’ sentence is reduced to 10 years. 

The Governor granted pardons to Travis Cleveland, Anthony Formby, Rudolph Garcia, Stephanie Gssime, Michael Jordan, Timothy Lewis, Reginald McGriff, Henry Moreno, Joseph Murillo, Michael Navarro, Ryan Nguyen, Shawn Phillips, Armando Solano, Mohammed Suleiman, and Theresa Yoder.

The name Rogel Aguilera-Mederos, who had his sentence reduced to 10 years, may sound familiar. He is the trucker whose case was discussed in this post a few week ago originally sentenced to 110 years for a deadly crash due to mandatory minimum sentencing statutes.

Here is some press coverage of Gov Polis' clemency work:

December 31, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

Wednesday, December 29, 2021

"How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"

The question in the title of this post is the headline of this new Newsweek article that explores a bit what I started thinking about upon hearing that Ghislaine Maxwell, Jeffrey Epstein's "helper," had been convicted on five of six federal sex trafficking charges.  The simple technical answer to the question is 65 years, and the article provides these (helpful?) additional details:

The most serious charge Maxwell was convicted of, sex trafficking of a minor, carries a maximum prison sentence of 40 years.  She was also convicted of transporting a minor with the intent to engage in illegal sexual activity, a charge punishable by up to 10 years, as well as three other charges that each carry maximum sentences of five years.... It is unclear when she could be tried on two separate counts of perjury, which could also add a five-year sentence apiece.

[I]f 60-year-old Maxwell is given a sentence anywhere near the maximum allowable term, she may spend the rest of her life behind bars, especially since the federal prison system does not include parole. If federal prison sentencing guidelines are allowed and she is ordered to serve sentences concurrently, Maxwell could face as little as 10 years.

Maxwell was sent back to Brooklyn's Metropolitan Detention Center after the verdict was read on Wednesday.  She has been held at the facility in isolation since being arrested in July 2020. Maxwell is likely to remain there until she is sentenced and assigned to a federal prison....

It is unclear whether security measures for Maxwell will be altered in light of her convictions.  Maxwell has denied all of the charges that she was convicted of on Wednesday. Plans to launch an appeal have already been set in motion, her attorney Bobbi Sternheim told reporters after the verdict. "We firmly believe in Ghislaine's innocence," Sternheim said. "Obviously we are very disappointed with the verdict, we have already started working on the appeal and we are confident that she will be vindicated."

U.S. District Judge Alison Nathan has yet to announce the date of Maxwell's pending sentencing hearing.

I think this article means to make the point that if federal sentencing guidelines are followed (not "allowed"), then Maxwell would be quite likely to get a term lower than the 65-year  statutory maximum available.  (It is perhaps worth noting that the most serious count of conviction now carries a statutory maximum sentence of life, but the stat max was "only" 40 years at the time of Maxwell's offense conduct.)

I am not an expert on guideline calculations for this set of offenses, but my sense is that the recommend range will be at least as high as 20 years, and perhaps even much higher.  It will be interesting to see the precise calculation and the sentencing advocacy by the prosecution and the defense in the months ahead.  It will also be interesting to watch if Judge Nathan's nomination to the Second Circuit, or the effort by some GOP Senators to question her sentencing work, could come to somehow impact Maxwell's eventual sentencing.

December 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Tuesday, December 28, 2021

Signing of NDAA into law brings some (low profile) federal sentencing reform to the military justice system

Who says significant federal sentencing reform cannot makes its way though Congress these days?  As this week proved, as long as a reform involves a relatively small and low-profile part of the federal justice system, and especially if it is part of a must-pass/must-sign National Defense Authorization Act (NDAA), federal sentencing reform can become law without even a peep in the press.  Indeed, I would be entirely unaware that Prez Biden's signing of the NDAA was worthy of this blog post, but for a helpful colleague ensuring I did not miss the sentencing piece of the military justice reform story in this year's NDAA.

Of course, as can be found in various press pieces, there was considerable attention given to one high-profile piece of military justice reform in the NDAA: "Democrats applauded provisions in the bill overhauling how the military justice system handles sexual assault and other related crimes, effectively taking prosecutorial jurisdiction over such crimes out of the hands of military commanders."  But, as this Just Security piece laments, the new law only makes "piecemeal changes" in this arena, because "the FY22 NDAA military justice reform provisions transfer only a narrow class of crimes out of the chain of command and into the hands of military lawyers under their respective service secretaries."  Helpfully, in addition to giving extensive critical attention to the high-profile reforms of the NDAA, this Just Security piece also just summarizes the sentencing story:

Revolutionizes military sentencing. The NDAA mandates that sentencing for all non-capital offenses be conducted by military judges instead of the current practice, which allows for panel (jury) sentencing.  It provides for offense-based sentencing, as opposed to the current unitary model (imposing a single sentence for all offenses) and directs that non-binding sentencing guidelines be created. This sentencing reform is a much-needed step forward, though it leaves in place the only criminal justice system in the United States that tolerates non-unanimous votes to convict, a practice the U.S. Supreme Court found unconstitutional for states last year. 

Because I tend to be a fan of jury sentencing, but this press article from a few months ago, headlined "'Crapshoot' Sentencing by Court-Martial Juries Likely to End, Advocates for New Legislation Say," highlights the disparity problems it seemed to produce in the military system:

Court-martial sentencing by juries may go the way of flogging, a change many military justice experts say is long overdue. Military judges instead would hand down sentences based on federal guidelines as part of military justice system reforms proposed in the 2022 National Defense Authorization Act....

Supporters say the revision would make sentences in military trials fairer, as well as more consistent and predictable.  "People convicted of sexual assault, one guy gets five years, the other guy gets no confinement," Don Christensen[, a former Air Force prosecutor and president of Protect Our Defenders,] said. "In drug cases, you'd also see huge disparities with no justification. With shaken baby cases, sentences were all over the place."

Military defendants currently may choose whether a judge or a jury, called a "panel," decides their cases, including sentencing.  Military jurors have little experience, context or guidance when determining sentences, Christensen said.  That is magnified by the fact that under the Uniform Code of Military Justice, jurors' sentences can range from no punishment all the way to lengthy prison terms, he added....

Proposals to end it in the military date to at least 1983. The Pentagon proposed an overhaul in 2016, but the idea was dropped.

Critically, in addition to shifting sentencing from juries to judges, the new NDAA calls for the creation of "sentencing parameters" and "sentencing criteria" to guide military judges with "no fewer than 5 and no more than 12 offense categories."  These new parameters and criteria are to be created by a "Military Sentencing Parameters and Criteria Board" with five members, all judges, within the next two years.  In other words, a brand new set of (more simple) federal sentencing guidelines are due to be created for the military justice system.  All sentencing fans should be sure to keep an eye on this process, and one can hope that it might provide some useful lessons for reform to the civilian federal justice system.

December 28, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Thursday, December 23, 2021

Might we celebrate this Festivus with a polite airing of sentencing grievances?

I am not quite sure if Festivus is still something in the pop culture ether, but I am sure that I still get a kick out of reviewing the faux-holiday's grand traditions,   And I am especially sure that, thanks to a seemingly endless pandemic and a toxic political environment, the Festivus tradition of airing grievances seems to be now an almost daily ritual for many. 

That all said, especially as another notable sentencing year winds down, I am eager to yet again welcome and encourage any and all readers eager to air their sentencing grievances in the comments.  As the title of this post suggests, I urge everyone to make extra efforts to be extra polite in any Festivus grievances being aired.  I hope that is not too much to ask in a holiday season.  

I will try to set the tone with a grievance that will be familiar to regular readers: I am disappointed we did not get nominations to the US Sentencing Commission in 2021.  But I am quite optimistic that we will be getting nominations in early 2022, and I am hoping a new USSC will demonstrate all sorts of "feats of strength" as it gets to work on long overdue federal sentencing reform projects.

Others?

December 23, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (14)

BOP chief from Trump Administration says "prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief"

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "To fix our prison system, we need far more than a change in leadership."  It is worth reading in full, and here are some extended excerpts:

U.S. prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief.  In fact, we’ve already tried that. Carvajal, appointed last year, became the sixth director or acting director in just five years.

The reality is that one person can only do so much. I should know. I was one of those six.

The news that sparked Durbin’s ire was an Associated Press report revealing that numerous federal prison workers have been arrested, convicted or sentenced for crimes since the start of 2019.  Sadly, corruption and other malfeasance within prison systems are not uncommon.  But as Durbin rightly noted, “it’s clear that there is much going wrong in our federal prisons, and we urgently need to fix it.”...

How do we move forward?  We must rethink our overall approach to incarceration to ensure that only the right people — those who need to be separated from society or require intensive reentry programming — are confined for the appropriate amount of time.

Common-sense sentencing reforms are a good place to start.  These include mandating a greater reliance on drug courts, community service and other alternatives to prison, such as halfway houses. It also means eliminating mandatory minimum penalties for drug crimes, which, among other problems, result in long sentences that drive prison populations up.

On the back end of the system, we need more intensive reentry programs to ensure that the more than 650,000 people leaving prison annually find the jobs, housing and healthcare they need to lead stable lives — and remain crime-free. Congress started this effort with bipartisan passage of the First Step Act of 2018 (co-sponsored by Durbin), but BOP needs sufficient resources to fully implement this law.

We also must invest in the recruitment, retention and training of correctional officers, while paying them on par with what other law enforcement officers earn. While the conduct spotlighted in recent news reports was reprehensible, it does not reflect the majority of BOP officers who put their lives on the line every day, and suffer disproportionately high rates of PTSD and suicide. They deserve to lead healthy lives, and their mental health has a direct impact on the orderly functioning of our prisons. It must be our concern.

Beyond such measures, Congress must tackle what should be the easiest, but may be the most divisive, piece of the debate: closing some of America’s oldest and costliest federal prisons.  Shuttering these aging lock-ups, some of which are more than a century old, would allow the BOP to reallocate staff and resources to the remaining facilities, improving safety and security while strengthening programs and services.

Closing prisons may be a hard sell to some, particularly to those in Congress.  But it has been done recently, at least at the state level. South Carolina, for example, has closed six correctional centers in the past decade, as its prison population declined following bipartisan passage of sentencing and corrections reforms in 2010.

One step the Attorney General and Congress should quickly consider is a recommendation from the Council on Criminal Justice’s Task Force on Federal Priorities, which called for creation of an independent oversight board for BOP.  This would bring outside expertise to bear on the agency’s multiple challenges while retaining the career leadership that historically has served the agency well.  The board would also provide political cover for harder choices that agency leaders and elected officials are sometimes reluctant or unable to make.

While the recent news about the BOP is disturbing, I hope it serves as a reminder of the need to rebuild our criminal justice system so that it is smaller, less punitive, more humane and safer for all.  With political will, independent oversight and an unwavering commitment, we can make holistic change to a system long in need of it.

December 23, 2021 in Criminal justice in the Trump Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

"Legislative Regulation of Isolation in Prison: 2018-2021"

The title of this post is the title of this new article now on SSRN authored by Judith Resnik, Jenny E. Carroll, Skylar Albertson, Sarita Benesch and Wynne Muscatine Graham. Here is its abstract:

Legislative activity seeking to limit or abolish the use of solitary confinement (often termed “restrictive housing”) has increased in recent years.  Efforts to “stop” solitary (nationally and internationally) are underway through organizing, hunger strikes, litigation, administrative reform, and media campaigns.  The goal is to end the practice of leaving people in cells for hours, days, months, and years on end.

This paper provides an overview of recent pending and enacted legislative proposals. From 2018 to 2021, legislation aiming to limit or end the use of isolation in prison was introduced in more than half of the states and in the U.S. Congress.  As of the summer of 2021, legislators had proposed statutes in 32 states and in the U.S. Congress, and both states and the federal system have enacted a variety of provisions.

The statutes vary in scope.  Some are comprehensive and address the treatment of all people incarcerated within a prison or jail system and impose limits on the reasons that prison authorities can use to put individuals into isolation, the duration of such confinement, and/or the extent to which the conditions of isolation can depart from those in general population.  In addition, some statutes focus on the use of solitary confinement for subpopulations, such as pregnant or young people, or people who have received certain medical or mental health diagnoses.  Many statutes have reporting requirements to create some measures of transparency and data collection.  A few aim to create monitoring and oversight beyond the prison administration.

This paper hones in on examples of enactments by detailing statutes in Colorado, Massachusetts, Minnesota, New Jersey, and New York.  This paper also provides an integrated overview of the features of the various statutory regimes.  In addition, because Pennsylvania legislators invited members of the Liman Center to testify in August of 2021 on a proposed bill, the paper contextualizes the proposed Pennsylvania bill within the recent nationwide waves of legislative activity and analyzes the text of the proposed bill.  This paper also draws on other work of the Liman Center's researchers, who are part of collaborative efforts underway since 2013 to track the rules governing solitary confinement, the numbers of people held in prison in isolation, and the conditions of their confinement. Time-In-Cell 2019: A Snapshot of Restrictive Housing, published in September 2020, is the latest report documenting these efforts. It is available at: https://law.yale.edu/sites/default/files/area/center/liman/document/time-in-cell_2019.pdf.

This legislative analysis will, we hope, be helpful in formulating and evaluating means to limit or end the use of isolation as a disciplinary or “protective” measure.  The Liman Center will also provide periodic updates of legislative activity and trends.

December 23, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, December 22, 2021

With new OLC memo allowing home confinement cohort to stay home, what now of Prez Biden's nascent clemency efforts?

As noted in this post yesterday, some federal prisoners released due to COVID to serve their sentences on home confinement pursuant to the CARES Act received a holiday present in the form of a new opinion from the Justice Department concluding the Bureau of Prisons has "discretion to permit prisoners in extended home confinement to remain there" even after the pandemic ends.  Prior to this new opinion, there was serious concern that thousands of federal prisons might have to be sent back to prison en masse when the pandemic was declared over. 

Indeed, the concerns about having to send thousands of low-risk and well-behaving folks back to federal prison was so strong that it prompted, as detailed in prior post here and here, the Biden Administration reportedly started to gear up a screened program for (mass?) clemency program focused on nonviolent drug offenders on home confinement with less than four years remaining in their sentences.  And now I am wondering what will come of those (still nascent) clemency plans.

In this ACLU press release, ACLU Justice Division Director Udi Ofer explains why clemency is still a concern for the home confinement cohort: 

“We also recognize that the threat of eventual return to prison is still present, so we ask President Biden to use his clemency powers to provide permanent relief to families.  A future administration can still force people back to prison, and families will not have permanent closure until their cases are fully resolved.  So while we celebrate today, we also commit to continuing to advocate for President Biden to use his power of clemency to commute these sentences.”

For all sorts of reasons, a commutation of sentence to time served would surely be preferred by nonviolent drug offenders on home confinement with less than four years left on their sentences as well as by all other persons in the home confinement cohort.  Will the clemency process keep churning in DOJ and the White House for this group now?  Will advocates keep pushing clemency for this group or now turn its attention to those still stuck in federal prison during the on-going pandemic?  And will Prez Biden actually use his clemency power for anyone anytime soon?

December 22, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Japan hangs three persons for "extremely ghastly" crimes, completing first executions in two years

As reported in this CBS News piece, "Japan hanged three death-row inmates on Tuesday, its first executions in two years, amid growing criticism by human rights groups of the country's use of the death penalty."  Here is more about those executed and unique way Japan goes about carrying out death sentences:

One of the three, Yasutaka Fujishiro, was convicted of killing seven people and setting fire to their house in 2004, while the other two, Tomoaki Takanezawa and Mitsunori Onogawa, were convicted in the 2003 killings of two pinball parlor employees.

Executions are carried out in high secrecy in Japan, where prisoners are not informed of their fate until the morning they are hanged.  Since 2007, Japan has begun disclosing the names of those executed and some details of their crimes, but information is still limited.

Justice Minister Yoshihisa Furukawa said at a news conference that the three had committed "extremely ghastly" crimes and the punishment was appropriate.

Furukawa declined to comment on the timing of the executions, often carried out during the year-end holiday season when parliament is in recess, which opponents say is an attempt by the government to reduce criticism.  Japan's parliament had its final session of the year on Tuesday. "As justice minister, I authorized their executions after giving extremely careful considerations again and again," Furukawa said.

Japan now has 107 people on death row at detention centers, instead of regular prisons.  It has maintained the death penalty despite growing international criticism, saying the punishment is needed to take into consideration the victims' feelings and as a deterrence for heinous crime.

Japan and the U.S. are the only two countries in the Group of Seven industrialized nations that use capital punishment. A survey by the Japanese government showed an overwhelming majority of the public supports executions, Furukawa said.

He defended the short notice given to inmates about to be executed, citing a "serious mental impact" on them if they learn their fate way in advance. Two death-row inmates recently filed a lawsuit against the government saying the system causes psychological distress and seeking compensation over mental suffering from living in uncertainty until the last day of their lives....

The executions were the first since Dec. 26, 2019, when a Chinese citizen convicted in the 2003 killing of a family of four in Fukuoka was put to death. He was one of three hanged that year. In 2018, Japan executed 15, including 13 Aum Shinrikyo cult members convicted in a deadly 1995 nerve gas attack on Tokyo's subways.

December 22, 2021 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Tuesday, December 21, 2021

New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"

Regular readers are familiar with the legal issues surrounding what I have called the "home confinement cohort," those people who had been released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act, but who were at risk of being sent back to prison at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much. But now that group has been given a notable holiday present in the form of a a new OLC 15-page opinion that concludes that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." Here is a key starting and closing paragraph from the new memo:

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon a thorough review of the relevant text, structure, purpose, and legislative history — and a careful consideration of BOP’s analysis of its own authority — we conclude that the better reading of section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.  Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading thatshould be accorded deference in future litigation challenging its interpretation...

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.  Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.  It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement.  BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy.  We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).

I certainly think this new OLC opinion reaches a much better policy outcome, and one that certainly seems consistent with both the goals and the text of the CARES Act.  I will need more time to read and re-read this new OLC effort before reaching a firm conclusion on its legal analysis, but I recall some months ago being moved by this long letter from advocates making the legal case for reconsidering the original OLC opinion.  

interestingly Attorney General Garland issued this statement along with the new OLC memo (with my emphasis added): "Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.  We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”  This statement by AG Garland suggests that DOJ is now going to engage in "rulemaking" that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends.  I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the "home confinement cohort" who may need to worry about eventually heading back to federal prison.

Some of many prior related posts:

December 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

A deep dive into extreme sentences in the Pelican State

61bbccc672eb3.imageThe Marshall Project with the Times-Picayune and The Advocate has a new series of pieces exploring extreme sentences in Louisiana.  Here are headlines, links and a few passages:

"Her Baby Died After Hurricane Katrina. Was It a Crime?: An expansive definition of murder in Louisiana leaves many behind bars forever."

Louisiana sentences people to life without parole at one of the highest rates in the nation, data shows. Nearly 4,200 men and women are serving lifetime sentences in the state, for crimes that range from homicide and rape to rarer cases of repeat purse snatchings and child neglect, an investigation by The Marshall Project and The Times-Picayune | The Advocate found.

Second-degree murder charges, like the ones Woods and Scott were found guilty of, are a big driver of life-without-parole sentences. The state has long had the highest homicide rate in the nation. But Louisiana law contains an unusually sweeping definition of second-degree murder that includes even some accidental deaths, legal experts say. And despite the wide variations in circumstances that can produce a second-degree murder conviction — from a premeditated ambush to a getaway car accident — the sentence is the same: mandatory life without parole. Judges have almost no discretion.

"‘The Only Way We Get Out of There Is in a Pine Box’: Elderly, ailing and expensive, lifetime prisoners cost Louisiana taxpayers millions a year."

Total medical spending for state corrections eclipsed $100 million last year. That’s an increase of about 25% from 2015, according to state budget figures....

Now, one in six people incarcerated in Louisiana has been sentenced to die in state custody. Nearly 1,200 lifers are over 60. Those geriatric lifers make up nearly 5% of the state prison population.

"A life sentence for $20 of weed? Louisiana stands out for its unequal use of repeat offender laws."

The crime that landed Kevin O’Brien Allen a spot among the more than 4,100 Louisianans now serving life-without-parole sentences wasn’t a bloody one: He sold $20 in marijuana to a childhood friend....

Agents booked Allen on two counts of marijuana distribution, and prosecutors in District Attorney Schuyler Marvin’s office made him an offer: a 5-year sentence if he pleaded guilty. Allen, a father of two with a steady job but a handful of drug convictions, balked....

Louisiana law affords prosecutors wide discretion to increase a repeat offender’s sentence, up to life, and Marvin’s office drew on Allen’s past convictions: possession with intent to distribute marijuana in 2004, marijuana possession in 2007 and 2011, and methamphetamine possession in 2013.

Once invoked by a prosecutor, the habitual-offender law gives little leeway to judges. They can sentence a defendant to less time if they find the minimum is so far out of line that it defies “acceptable goals of punishment” or serves as “nothing more than the purposeful imposition of pain and suffering.” But courts have described those scenarios as “exceedingly rare.”...

Allen [received a life sentence and] now works in the prison kitchen, making juice for pennies a day, serving a sentence that ends when he dies. He’s among nearly 300 people serving life without parole in Louisiana prisons based on their status as habitual offenders, an analysis of recent state corrections data show. In 40% of those cases, the incarcerated person is locked up for life on a non-violent crime....

Corrections data show wide variances in how district attorneys around the state have used the habitual offender law. Nearly two-thirds of habitual lifers in the state were sentenced in one of four large parishes: Caddo, Orleans, St. Tammany or Jefferson, according to the data. The practice is somewhat less common in East Baton Rouge Parish, the state’s most populous.

Overall, Louisiana prosecutors have mostly aimed the law at Black defendants, like Allen. Black people make up 31% of Louisiana’s population, but 66% of its state prisoners; 73% of those serving life sentences; and 83% of those serving life as habitual offenders, corrections and census data show.

December 21, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5)

Monday, December 20, 2021

Eighth Circuit panel affirms time-served sentence for enticement of a (fake) minor when guidelines recommended 46-57 months

A helpful reader made sure I did not miss this interesting Eighth Circuit panel ruling today in US v. Davis, No. 21-1283 (8th Cir. Dec. 20, 2021) (available here). Here are portions from the opinion's start and heart:

Fredrick M. Davis pled guilty to attempted coercion or enticement of a minor in violation of 18 U.S.C. § 2422(a).  The district court sentenced him to time served and 120 months’ supervised release, including one year of home confinement. The United States appeals the below-guidelines sentence....

In 2019 Davis contacted “Addyson” and “Sara” online.  They identified themselves as 14-year-old girls, but were actually personas of undercover law enforcement. Davis asked them to meet with him in a hotel in Dickinson, North Dakota.  He sent them sexually explicit messages and a graphic picture, and asked them to send him explicit pictures.

Davis was arrested at the North Dakota hotel where he intended to meet the girls. Under a pretrial agreement, Davis pled guilty to one charge—attempted coercion or enticement of a minor. His advisory guideline range was 46-57 months.  As required by the pretrial agreement, the parties jointly recommended a 60-month sentence and five years of supervised release.  The district court sentenced Davis to time served (two months) and 120 months of supervised release, including one year of home confinement, participation in sex offender treatment, and registration as a sex offender....

The government objected to the sentence for failing to afford adequate deterrent effect (the district court noted the objection).  But a district court has “wide latitude” to weigh factors, and it “may give some factors less weight than a [party] prefers or more weight to other factors, but that alone does not justify reversal.”  United States v. Brown, 992 F.3d 665, 673–74 (8th Cir. 2021).  In its written statement of reasons, the district court did acknowledge the need to afford adequate deterrence to criminal conduct. It chose to give other factors more weight than the deterrence factor, which is not a clear error of judgment.

The government also argues that the district court erred in weighing the Post Conviction Risk Assessment.  The record shows the district court considered the PCRA in conjunction with other factors.  In fact, at sentencing, the court asked the prosecutor: “do you agree with the assessment in the PSR that the risk level is very low for this offender to reoffend?”  He replied, “I do agree, yes, Your Honor.”  It is within the district court’s discretion to weigh such factors.

The government contends Davis’s commendable 20-year military career and his exemplary behavior on pretrial release are not “sufficiently compelling” to justify his below-guidelines sentence.  See Gall, 552 U.S. at 50.  But, this court “may not require ‘“extraordinary” circumstances to justify a sentence outside the Guidelines.’” Feemster, 572 F.3d at 462, quoting Gall, 552 U.S. at 47.  The district court’s rationale for granting the variance does not need to be extraordinary, only substantively reasonable.

18 U.S.C. § 3553(a)(1) instructs the sentencer to consider a defendant’s history and characteristics.  In his meritorious military career — half his adult life — he earned numerous awards and commendations, including the Combat Action Ribbon and recognitions for service in Iraq and Somalia.  Cf. U.S.S.G. § 5H1.11 (“Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.”).  He also did more than simply staying out of trouble while on pretrial release: he acknowledged his conduct, expressed remorse, sought ongoing treatment for his service-related PTSD, and got and maintained a job....

The ten years of supervised release, one year of home confinement, and other restrictions here are a substantial punishment.  “[T]he Guidelines are only one of the factors to consider when imposing a sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment.” Gall, 552 U.S. at 59.  “[C]ustodial sentences are qualitatively more severe than probationary sentences of equivalent terms,” but “[o]ffenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty.” Id. at 48.  In Gall itself, the Court reversed for not giving due deference to the district court’s “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence” of probation. Id. at 59-60. 

December 20, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

ACLU releases new poll showing broad support for clemency for home confinement cohort

This new press release reports that "the American Civil Liberties Union released a poll today showing broad bipartisan support for President Joe Biden to issue clemency to those who were selected to be transferred home under the CARES Act."  Here are more details from the press release:

During the pandemic, thousands of people have been released from prison to finish their sentences on home confinement, many of whom are elderly or especially vulnerable to COVID-19.  Now, thousands are at risk of being sent back to prison when the pandemic recedes if President Biden does not take action.  Sending all of these people back to federal prison would be the single largest act of incarceration in U.S. history....

Among the poll’s findings:

  • 63 percent of voters nationally support clemency for those who are serving their sentences at home due to COVID-19;
  • Among voters in swing House districts, 70 percent of voters support allowing those who were transferred home to serve the reminder of their sentences at home to help prevent the spread of COVID-19;
  • 68 percent of voters nationwide and 58 percent of voters in swing House districts agree that it’s not fair to return people to prison after they have been successfully released to their families and communities and re-entered society;
  • 53 percent of Republican voters agree that it’s unfair to release people back to their families and communities and then return them to prison;
  • 64 percent of voters nationwide — including 84 percent of Democrats — support using the president’s power of clemency to end or shorten prison sentences of people deemed safe for release; and
  • While only 38 percent of independents approve of Biden’s job as president, a majority of them (57 percent) say they would support the president using clemency.

I am a bit surprised that these numbers are not stronger, though it is unclear from the ACLU "fact sheet" just how the poll questions were presented and how much the average poll participant fully knows or understands about all those in the "CARES home confinement cohort."   In fact, I still have not seen a lot of detailed data on just how many persons are still serving time on home confinement whose sentences goes beyond 2022 and would be at risk of a return to prison if the pandemic (miraculously) ends in the next few months.  I have also not seen much information about the sentences still to serve, the offenses of conviction and other details regarding exactly who would benefit from mass clemency om behalf of the home confinement cohort.  Though these details likely would not undermine my general support for bringing relief to this low-risk group, they might shape my view of whether everyone ought to have their sentences commuted to time served or if some perhaps ought to be receive some other form of relief in some cases.

Given that we are now into the final holiday weeks of the year, I am now getting close to giving up any hope that  that Prez Biden will grant even a single clemency in 2021.  (Of course, holiday season clemencies late into December are not uncommon.  Four years ago today, for example, Prez Trump granted a commutation to Sholom Rubashkin.)  And, of course, the omicron surge of the COVID pandemic now suggests that we are clearly many months away, and perhaps even years away, from a return to normal BOP operations when the CARES home confinement cohort would be at risk of a return to prison.  All these realities lead me to think we will be discussing these issues (and doing more polling?) well into 2022.

Some of many prior related posts:

December 20, 2021 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Despite lacking a quorum, US Sentencing Commission still has an interesting and productive year

Regular readers are likely tired of hearing me complain about the US Sentencing Commission being crippled by a lack of Commissioners, but I hope some have noted my eagerness to compliment the "short-staffed" USSC for all the data and reports produced and promulgated through 2021.  This morning I received an email from the Commission providing a "year in review," and I was struck again at what the Commission has achieved this past year even absent a quorum.  I cannot find this email in a web form, so I will here just reproduce some highlights (with links from the USSC and to the USSC website):

1. Preliminary FY21 data reveal a continued decline in sentencings and a historic shift in the makeup of the federal drug caseload. Learn more ...
2. With the advent of COVID-19, tens of thousands of offenders sought compassionate release. The Commission tracked and reported this data throughout 2021. Learn more

In early 2022, look for a comprehensive new research report on compassionate release providing even greater analysis regarding the courts’ reasoning for granting or denying motions for compassionate release....

6. The Commission expanded its catalog of interactive tools designed for those working in the federal criminal justice system.
IDA Expansion: Interactive Data Analyzer feedback has been very positive and users continue to #AskIDA for even more data. The Commission has listened to your feedback. IDA is now updated with enhanced filtering capabilities—including a brand new data filter for career offenders. Learn more

JSIN Development: The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind. The platform provides quick and easy online access to average prison length and other sentencing data for similarly-situated defendants. Learn more

December 20, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Friday, December 17, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 16, 2021

DPIC releases year-end report emphasizing "continuing decline of death penalty" in 2021

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2021: Year End Report; Virginia’s Historic Abolition Highlights Continuing Decline of Death Penalty." Here is the starts of the report's introduction, with lots of data and details following thereafter:

The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.

Virginia’s path to abolition of the death penalty was emblematic of capital punishment’s receding reach in the United States.  A combination of changing state demographics, eroding public support, high-quality defense representation, and the election of reform prosecutors in many key counties produced a decade with no new death sentences in the Commonwealth.  As the state grappled with its history of slavery, Jim Crow, lynchings, and the 70th anniversary of seven wrongful executions, the governor and legislative leaders came to see the end of the death penalty as a crucial step towards racial justice.  On March 24, Virginia became the first southern state to repeal capital punishment, and expanded the death-penalty-free zone on the U.S. Atlantic coast from the Canadian border of Maine to the northern border of the Carolinas.

In the West, where an execution-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began removing prisoners from the state’s death row based on a 2019 law that redefined the crimes that constitute capital murder.  Nationwide, mounting distrust of the death-penalty system was reflected in public opinion polling that measured support for capital punishment at near half-century lows.  With Virginia’s abolition, a majority of states have now abolished the death penalty (23) or have a formal moratorium on its use (3).  An additional ten states have not carried out an execution in at least ten years.

2021 saw historic lows in executions and near historic lows in new death sentences.  As this report goes to press, eighteen people were sentenced to death, tying 2020’s number for the fewest in the modern era of the death penalty, dating back to the Supreme Court ruling in Furman v. Georgia that struck down all existing U.S. death-penalty statutes in 1972.  The eleven executions carried out during the year were the fewest since 1988.  The numbers were unquestionably affected by the pandemic but marked the seventh consecutive year of fewer than 50 death sentences and 30 executions.  Both measures pointed to a death penalty that was geographically isolated, with just three states — Alabama, Oklahoma, and Texas — accounting for a majority of both death sentences and executions.

December 16, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (2)

Wednesday, December 15, 2021

"Would an independent commission solve the clemency backlog?"

The question in the title of this post is the headline of the this notable new commentary in the Chicago Sun-Times authored by Jacob Sullum.  Here are excerpts:

When Jimmy Carter became president in 1977, fewer than 500 clemency petitions were pending at the Justice Department’s Office of the Pardon Attorney.  When Joe Biden became president in January, he faced more than 15,000 petitions, a number that had risen to more than 18,000 as of Dec. 14.

A bill that Rep. Ayanna Pressley (D-Massachusetts) unveiled last Friday seeks to address this alarming backlog, which includes many people serving unconscionably long sentences for non-violent crimes, by eliminating the Office of the Pardon Attorney and assigning its functions to an independent, nine-member U.S. Clemency Board appointed by the president.

While Pressley is rightly concerned that meritorious cases are languishing at the Justice Department, it’s not clear that her FIX Clemency Act would work as advertised....

The surge in commutation petitions followed an explosion in the federal prison population, which rose ninefold between 1980 and 2013, from fewer than 25,000 to more than 219,000. Since then, the total has fallen by 29%, but it is still more than six times the number in 1980.

Sentences also have increased dramatically. Current federal prisoners, 46% of whom are serving time for drug offenses, received an average sentence of 147 months, nearly three times the average sentence imposed in 1986.... 

So far, Biden has not granted any pardons or commutations.  But when he gets around to it, recent history suggests the Office of the Pardon Attorney will be ill-equipped to help him....

Pressley and her allies argue that the current system entails an unavoidable conflict of interest, since it charges the same department that sends people to federal prison with deciding whether to recommend that the president shorten their sentences.  Former prisoners such as Danielle Metz and Alice Marie Johnson, who were serving life sentences for non-violent cocaine offenses before they were freed by Obama and former President Donald Trump, respectively, agree with this critique and support Pressley’s bill....

One way or the other, the buck stops with the president, who has plenary power to grant clemency.  If Biden is serious about trying to make up for his past as a lock-’em-up legislator, he should get started.

Prior recent related post:

December 15, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative publishes report on "Winnable criminal justice reforms in 2022"

Naila Awan has authored this new report for the Prison Policy Initiative under the title "Winnable criminal justice reforms in 2022."  Here is its introduction and then links to the eight categories of reform ideas:

This year, we’ve expanded our annual guide on state legislative reforms that we think are ripe for victory. While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  And for the first time, we have added some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other advocates and state legislators.

December 15, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, December 14, 2021

After Missouri expands parole eligibility for certain juve offenders, Bobby Bostic secures parole 25 years after getting 241-year sentence

The name Bobby Bostic may be familiar to some readers, as he became a focal point for debate and litigation over the application of the Supreme Court's Graham Eighth Amendment ruling prohibiting LWOP sentences for juvenile nonhomicide offenders.  Back in the 1990s, Bostic received in Missouri state court a sentence of 241 years for armed robberies and would possibly not be eligible for parole for nearly 100 years under Missouri law at that time.  Back in 2018, I blogged here about the sentencing judge's op-ed urging the US Supreme Court to take up Bostic's cert petition, but the Justices declined to do so.

Fast forward a few years, and Bostic's case in the news again reporting that MIssouri law has changed and that Bostic has now secured parole after serving a quarter century behind bars.  This local article, headlined "Sentenced to 241 Years as a Teen, Bobby Bostic Wins Parole," provides these details:

A Missouri man sentenced to 241 years in prison for crimes committed when he was just sixteen will be released next year after a quarter-century behind bars.  The ACLU announced today that 42-year-old Bobby Bostic has been granted parole.  He will be released late next year after being provided courses designed to aid him in his re-entry.

On December 12, 1995, Bostic and 18-year-old Donald Hutson were high on PCP when they robbed a group of St. Louisans delivering holiday gifts to a needy family. In the course of the armed robbery, Bostic shot one victim in the side.  Hutson shot another individual.  Both the gunshot victims survived.

Bostic was charged with 18 felonies.  He took his case to trial and in 1997 was found guilty on all counts. His earliest parole date was set for the far-flung year of 2201.  The trial's judge, Evelyn Baker, told Bostic at his sentencing, "You're gonna die with your choice," and added, "Nobody in this room is going to be alive in the year 2201."

Baker retired in 2008.  Two years later, the U.S. Supreme Court delivered a ruling in Graham v. Florida that “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Bostic's 241-year sentence, however, was not technically a life sentence. In theory, he would have been eligible to be considered for parole at the age of 112....

In recent years, Judge Baker has come to regret the 241-year sentence she handed down to Bostic, writing in an op-ed published in Riverfront Times last year that, "At the time, I didn’t know, and the criminal justice system didn’t understand how the juvenile brain worked and how long it took to mature."

In August of this year, the Missouri legislature passed a state statute allowing individuals who are serving "de facto" life sentences for nonhomicide crimes committed as juveniles to receive parole hearings after 15 years of incarceration.  The ACLU says that, in addition to Bostic, there are about 100 other individuals in Missouri prisons who meet this criteria.

Bostic had a parole hearing in November that, according to the ACLU, was "one of the first under the new law."  At Bostic's side was the same judge who had sentenced him to nearly a quarter of a millennium in prison.  At the parole hearing, Baker advocated for Bostic's release....

Donald Hutson, Bostic's accomplice in 1995, died in prison in 2018.

Prior related post:

December 14, 2021 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)