Thursday, April 22, 2021

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

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

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

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

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

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

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

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

April 22, 2021 in Criminal justice in the Biden Administration, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

SCOTUS affirms juve LWOP sentence, 6-3, in Jones v Mississippi

I am on the road today, and so I am not that surprised the Supreme Court has handed down the big sentencing opinion I have been awaiting all Term.  I hope to comment later today.

UPDATE Thanks to airport wifi, I can now provide this link to the full opinion in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021).  Here is how Justice Kavanaugh's opinion for the Court begins

Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.  In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18.  The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.

Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller.  Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.  And Jones says that the trial judge did not make such a finding in his case.

Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents.  In Miller, the Court mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence.  Id., at 483.  And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument.  We affirm the judgment of the Mississippi Court of Appeals.

Justice Sotomayor's dissent, which is joined by Justices Breyer and Kagan, starts this way:

Today, the Court guts Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S., at 479, he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in Miller and MontgomeryMiller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S., at 195 (quoting Miller, 567 U.S., at 479–480).  Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S., at 210, but it is far from sufficient.  A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence.  Miller, 567 U.S., at 480.  The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery, 577 U.S., at 208 (internal quotation marks omitted).

Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11.  Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none.  Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19.  The Court is fooling no one.  Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.

April 22, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, April 21, 2021

Notable new US Sentencing Commission primers on federal crime victim rights

The US Sentencing Commission has just released a couple of new primers on crime victims' right in the federal criminal justice system. Here are links to USSC pages about the short reports and descriptions:

Crime Victims' Rights

(April 2021) This primer provides a general overview of crime victims’ rights under the Crime Victims’ Rights Act (“CVRA”), as described in 18 U.S.C. § 3771, the related provisions of the Mandatory Victim Restitution Act (“MVRA”) and the Victim and Witness Restitution Act (“VWRA”), and the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. The Sentencing Guidelines implement the CVRA through USSG §6A1.5 and the related restitution provisions through USSG §§5E1.1 and 8B1.1.  Although the CVRA applies broadly to pretrial, trial, sentencing, and post-sentencing proceedings, this primer focuses primarily on its application to sentencing and post-sentencing issues, including revocations of probation, supervised release, habeas proceedings, and parole proceedings.  This primer is not intended as a comprehensive compilation of case law or as a substitute for independent research and primary authority.

Economic Crime Victims

(April 2021) This primer provides a general overview of selected guideline issues related to victims in offenses sentenced under §2B1.1 (“Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud or Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States”).  Although the primer identifies some of the relevant cases and concepts, it is not intended as a comprehensive compilation of the cases or analysis related to these issues.

April 21, 2021 in Advisory Sentencing Guidelines, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Great coverage of the success of "The Mother Teresa of Pot Prisoners"

In years past, I have tended to dislike the uptick in marijuana media coverage around 4/20 because a range of serious issues, and especially serious criminal justice issues, often seemed not to get the serious coverage that they deserved.  But with marijuana reform continuing to pick up momentum, I think the 4/20 media mania is getting a little better.  And I will always be grateful for whatever leads to media coverage of my favorite advocate of criminal justice reform in the marijuana space.  She is the focal point of this lengthy new Input piece with this great full title: "How ‘The Mother Teresa of Pot Prisoners’ saved her brother from dying behind bars: Beth Curtis’ LifeforPot.com may look janky, but it’s been amazingly effective in getting nonviolent marijuana offenders out of prison."  I recommend the piece in full, and here are snippets:

On 4/20, Craig [Cesal] will be on a fishing trip in West Palm Beach with a group of other marijuana offenders who’ve managed to have their sentences reduced. “There’s a cannabis company that’s paying to fly a bunch of us former pot lifers down,” Cesal says. “Of course, Beth is going down, because we all have ties to her.”

The “Beth” he’s referring to is 79-year-old Beth Curtis from Zanesville, Ohio, the founder of LifeforPot.com, an amateurish little site she built in 2009 to raise awareness about people like Craig — or more specifically, people like her brother, John Knock, who was sentenced to two life terms plus 20 years for a first-time nonviolent marijuana-only offense. Beth has spent more than a decade aggressively advocating for federal clemency on Knock’s and others’ behalf, earning her the nickname the Mother Teresa of Pot Prisoners.

Curtis hoped that by giving people like her brother a presence on the internet, her website would help to raise public awareness about an aspect of criminal justice sentencing most people didn’t seem to know about. “When I talked about somebody serving life for marijuana, honestly people didn’t believe it,” she says. “They’d think, ‘There has to be a dead body somewhere.’ Indeed, there do not have to be any dead bodies, or even a gun.”...

When I ask Curtis if she built the site herself, she laughs out loud. “Yes, can’t you tell?” she replies. Clunky as it is, the current version is much improved from the original, which she built using “CafePress or something” and became a running joke among her friends. When an article in the Miami New Times mentioned her “scrappy-looking site,” fellow clemency advocate Dennis Cauchon called her and said “You know, ‘scrappy’ rhymes with something,” she relates. “And that’s indeed true,” she adds.

Crappiness aside, the site’s been effective. Of the 39 people featured on Life for Pot, 24 have been granted clemency or compassionate release — including, most recently, Knock, who was granted clemency by President Trump in January.

“She did it,” Knock, 73, says of his sister. “One little lady, barely five feet tall, and she just kept pushing and pushing and pushing.” For someone as driven as Curtis, failure was not an option: “I couldn’t imagine that I would die while he was still confined behind bars. The thought sickened me.”

April 21, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 20, 2021

Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement?

The question in the title of this post is what I keep wondering as days pass since I saw this FAMM press release from last Friday and yet still fail to see any updated official information from the Department of Justice or the the Bureau of Prisons.  The FAMM press release, dated April 16, 2021, starts this way (my emphasis added):

FAMM President Kevin Ring released the following statement in response to the Department of Justice (DOJ) releasing a memo expanding the criteria for home confinement.

“We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement,” Ring said. “The original criteria were too narrow. These changes will protect vulnerable people in federal prisons.

“We are extremely disappointed, however, that the administration has not rescinded or overruled the legal memo that could force people on home confinement back to prison when the pandemic subsides.  Thousands of families are rightfully anxious that they will be separated again soon.  We worry that today’s announcement will result in more families being in the same boat.”

I understand why the FAMM release expresses concern that the Biden Administration has not yet addressed the worrisome OLC memo discussed in this post that would require returning some folks to prison post-pandemic.  But, in the short term, I am quite concerned that an important memorandum expanding the criteria for home confinement seemingly has not yet been made widely publicly available.

Notably, on this DOJ coronavirus page, there is no link to or any reference to a new DOJ memo on home confinement criteria.  And this BOP COVID page still states expressly that "eligibility requirements for an inmate to be considered for Home Confinement are set forth in the Attorney General's March 26 and April 3, 2020 Memoranda."  Given these webpages, one might say that DOJ and BOP are now not just guilty of a lack of transparency on an important matter of public concern, but they are actually providing misleading information about what the current home confinement criteria are right now.

Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement.  It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making.  And, most fundamentally, it is problematic for the American people who have every right to expect and demand that consequential criminal justice decisions by government actors will be transparent and clear, not hidden and opaque.

UPDATE:  The folks at FAMM have posted here what looks like the full text of the new "Updated Home Confinement Guidance under the CARES Act  [as of] April 2021"  Here is how this document gets started:

On Wednesday, April 14, 2021, FAMM received the text of a memo outlining new criteria for home confinement under the CARES Act.  As of this time, the memo has not been shared online by the BOP or Justice Department, but a BOP spokesperson confirmed to The Marshall Project that this memo was sent to all BOP facilities.

Frustratingly, it is hard to tell from the text of this still-officially-secret DOJ memo just how the criterial for home confinement has been changed and how many current federal prisoners might be impacted by the change.  Moreover, the memo also says that it "provides updated guidance and direction and supercedes the memorandum dated November 16, 2020," but I am not sure that November 16 memo was ever made public.  Sigh. 

April 20, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (6)

Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors

The high-profile trial of Derek Chauvin for killing George Floyd resulted in a jury verdict this afternoon in a Minnesota court with guilt verdict on all three homicice charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. It is my understanding that, under Minnesota state sentencing guidelines, Chauvin would get a prison term of 12.5 years absent proof of aggrvating circumstances, so-called Blakely factors.

I believe that the the prosecution was prepared to argue numerous aggravating Blakely factors to the jury, but that CHauvin's legal team waived its right to jury determination on these issues so that they will now be argued to the judge. Though I am not an expert on Minnesota law, I believe that a judicial finding of aggravating factors in the coming weeks could make Chauvin eligible to receive a sentence up to the 40-year maximum on the second-degree unintentional murder conviction.

The Robina Institute has this helpful primer on Minnesota sentencing law, and it makes this important point about the usual approach to sentences increased based on aggravating factors under the state's sentencing guidelines:

The Guidelines do not themselves limit the degree of durational (length-of-custody) departure, but case law provides that upward departures may not exceed twice the presumptive prison term (the middle figure in grid cells above the disposition line; the sole figure in cells below the line) except in rare cases of extremely aggravated circumstances. (Cite to:  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). See also State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upholding the rule from Evans despite 27 years of changes to the guidelines).)

April 20, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

April 20, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 19, 2021

Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled "Pondering the aftermath of a landmark ruling in felon-in-possession cases," and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Garythe court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”...

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.

April 19, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Qualifying Prosecutorial Immunity Through Brady Claims"

The title of this post is the title of this notable new paper now available via SSRN and authored by Brian Murray, Paul Heaton and Jon Gould. Here is its abstract:

This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations.  While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims — those who are subjected to wrongful imprisonment due to Brady violations — with no access to justice.  Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.

The Article seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system.  After developing a novel taxonomy of Brady cases, evaluating such cases against basic tort principles, and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.

April 19, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert on Confrontation Clause case, and Justice Sotomayor has much to say about two criminal case denieal

The Supreme Court is back in action this morning after a short hiatus, getting started with this new order list that has most of its limited action in criminal law cases.  Specifically, the Justices granted certiorari in a single case, Hemphill v. New York20-637, which presents this criminal procedure issue:

Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

In addition, in Brown v. Polk County, No. 20–982, a case concerning Fourth Amendment requirements for a penetrative cavity search of a pretrial detainee, Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari.  And in Whatley v. Warden, Ga. Diag. & Classification Prison, No. 20–363, a case concerning defense counsel's failure to object to a capital defendant's shackling, Justice Sotomayor issued this lengthy dissent from the denial of certiorari.

April 19, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, April 18, 2021

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

A few weeks ago in this post I flagged the notable new empirical research indicating that nonprosecution of nonviolent misdemeanor offenses produced a large reductions in the likelihood of new criminal complaints.  This research is rightly getting a lot of attention, though this new National Review piece wonders if it might be getting too much attention.  The piece, by Charles Fain Lehman, is headlined "Progressives Are Overreacting to a Startling Crime Study."  And though I might dicker with some points made in the piece, I recommend the full discussion.  Here are excerpts:  

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less flashy than felonies, but they are the main way Americans experience the criminal-justice system.

We prosecute misdemeanors because, among other things, we want there to be fewer of them, and we believe prosecution deters reoffending.  But a recent blockbuster paper makes a startling claim to the contrary: Prosecuting misdemeanants actually increases the likelihood that they will offend again.

The paper has been heralded by supporters of progressive district attorneys who have used their position to unilaterally impose reforms on the criminal-justice system, including refusing to prosecute many misdemeanants.  Boston D.A. Rachael Rollins, who provided the data for the study, has claimed it confirms the wisdom of her approach.  So have other reformers such as Chicago-area state’s attorney Kim Foxx and San Francisco district attorney Chesa Boudin.

Policy-makers, however, should exercise caution before reaching such expansive conclusions.  The paper can just as easily be read to endorse more modest reforms — especially keeping in mind long-established principles of criminal justice on which it is silent....

Most of the non-prosecution effect they measure is the result of first-time offenders, who become much more likely to commit crime if prosecuted.  By contrast, prosecuting repeat offenders of any sort has little discernible effect on the likelihood they will offend again in the future....  Diverting [first-time misdemeanants] offenders, with the threat of more serious punishment if they reoffend, could help clear dockets while minimizing crime. It would also free ADAs to focus on repeat misdemeanants....

The above approach is different from the idea that we should in general prosecute misdemeanants a lot less — a valid interpretation of the paper’s findings, but not necessarily the right one, for two reasons.

First, deterrence is not the only reason to prosecute an offender.  Advocates of not prosecuting misdemeanors tend to invoke “victimless” crimes such as drug possession and prostitution. But misdemeanors can also include offenses such as simple assault and auto theft — crimes that harm others.  Such crimes reasonably elicit a demand for retributive justice. It offends our moral sensibilities to think that a person who commits a serious but not felonious assault could get off scot-free.

Second, systematic reductions in leniency may affect all criminals’ decision-making, increasing their propensity to offend in the long-run. The paper shows that Rollins’s move toward non-prosecution of misdemeanors did not in the aggregate increase misdemeanor offenses, but the data it uses account only for the period between her election in January 2019 and March 2020, when the coronavirus crisis began.  It’s entirely possible that criminals will adapt, and misdemeanor offending will increase, in the long run....

Coming face to face with the justice system can be time-consuming and exhausting, and may, at the margins, increase rather than reduce a person’s propensity to offend.  Even those of us highly concerned with public safety should be interested in creative solutions that minimize crime and disorder.

At the same time, policy-makers should not get ahead of themselves — as some have in the rush to defund police departments and decrease the use of more serious charges.  Good research is the basis of good policy, and this research makes a valuable contribution to public-safety policy.  But we should be cautious in how far we go with it — careful changes around the edges are always safer than blanket transformations.

Prior recent related post:

April 18, 2021 in Criminal Sentences Alternatives, Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, April 17, 2021

"Applying Procedural Justice in Community Supervision"

The title of this post is the title of this interesting report released last month by folks at the Urban Institute.  This page has this abstract for the report:

Procedural justice, a framework for authority figures to treat people with fairness and respect, can improve probation supervision and core supervision outcomes.  This report summarizes the approach and provision outcomes of an effort to develop and pilot a new procedural justice training curriculum outlining new tools and practices for probation officers.  Analyses of interactions between supervising officers and people under supervision, survey responses regarding perceptions of supervision, and analyses of administrative data provided mixed findings, with some preliminary indications that participating in the procedural justice training may make probation officers’ treatment of people under supervision fairer and more respectful and improve supervision outcomes.  However, the conclusions that can be drawn from even those results supportive of intervention impact are subject to significant limitations, given the nonexperimental nature of the design and the small number of observations in some of the data collected.

April 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, April 16, 2021

"Virginia should roll back the punitive influence of prosecutors and victims on parole decisions"

The title of this post is the headline of this new Washington Post op-ed by Nora Demleitner.  Here are excerpts:

The Virginia Parole Board scandal gets worse by the day.  The board stands accused of disregarding state law and its own procedures to facilitate the parole release of a few incarcerated men.

A watchdog report alleges that the board failed to consider the required input from victim families and did not inform them and prosecutors of pending releases.  As some Virginia legislators demand further investigation, we should also question the role victims and their families and prosecutors should play in parole hearings in light of their outsize influence on the outcome.  Release decisions should focus on reintegration and second chances. Only rarely do victims and prosecutors have relevant knowledge on these issues. For that reason, states need to roll back their involvement in release decisions....

Currently, victims and prosecutors effectively determine the outcome of parole decisions.  All states, including Virginia, provide victims with opportunities to weigh in on impending parole releases.  When they do, their impact is substantial. That may not be surprising as victims’ rights groups and prosecutors have labeled releases over victim objections another victimization.  That means in many states, victims exercise a virtual veto over releases.

But inmates eligible for parole do not have to contend only with victims. In many states, prosecutors are explicitly invited to participate in hearings, either by providing their views in writing or in person.  At least one study demonstrates the powerful impact of their testimonials. Prosecutorial recommendations against parole tend to lead to denials. Surprisingly, the opposite does not hold.  Apparently, some boards only credit punitive prosecutors....

Victim participation in parole hearings, strongly supported by prosecutor associations, was an outgrowth of the victims’ rights movement. It promised to counteract the perceived leniency of the criminal justice system and give victims a voice.  But participation fails to provide victims with real support and instead privileges punitiveness, never-ending symbolic revenge. Many victims do not participate in parole hearings.  Their addresses may no longer be on file, or they decided to put the past behind them.  Often only those victims who insist on continued incarceration have garnered publicity and prosecutorial support.  That makes release random and largely dependent on the victim.  This practice reinforces a system marred by vast racial, class and power inequities.

Release review, in the form of parole and other mechanisms, should not re-litigate the conviction offense but rather assess whether the incarcerated person will be able to reintegrate successfully and desist from crime in the future.  It is about second chances. Prosecutors and victims, who have an opportunity to make their case at earlier stages — charging, plea bargaining or a trial and sentencing — will know little about the imprisoned person’s suitability for release, which may first come up decades after the crime.

Deaths and serious crime leave a lasting impact that cannot be undone.  Yet, when an offender becomes parole-eligible, retributive concerns should no longer play a role.  Only in cases in which they could speak to reintegration and recidivism, such as when the incarcerated person recently threatened them, for example, is victim or prosecutor testimony relevant. Otherwise, their input does not advance the assessment of an incarcerated person’s future prospects.  There are more meaningful opportunities for their participation and for society and the criminal justice system to show their support for victims.  Release decisions are the wrong moment.

In its next session, Virginia’s legislators should take another look at parole and recalibrate the focus of release hearings.  Reintegration and second chances mean rolling back the involvement of victims and prosecutors.  It is time to end this ill-guided practice of the carceral state that elevates punitive impulses above rehabilitation and second chances.

April 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

One year (and 185 pages) later, divided Eleventh Circuit (now en banc) again rules Jeffrey Epstein's victims had no pre-charge rights under federal CVRA

Almost exactly one year ago, as blogged here, a divided Eleventh Circuit panel handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant.  The opinions in the original panel decisions In re Courtney Wild, No. 19-13843 (11th Cir. April 14, 2020) (available here), ran a total of 120 pages.  Yesterday, exactly a year and a dat later, the Eleventh Circuit handed down this new en banc ruling in this case ruling 185 pages.  Judge Newsom, who authored the original panel's majority opinion for the court also authored the lead en banc opinion, which starts this way:

This petition for writ of mandamus arises under the Crime Victims’ Rights Act, 18 U.S.C. § 3771.  Petitioner Courtney Wild is one of more than 30 women who, according to allegations that we have no reason to doubt and therefore accept as true in deciding this case, were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her mandamus petition, Ms. Wild asserts that when federal prosecutors secretly negotiated and executed a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with and to be treated fairly by the government’s lawyers.

We have the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government attorneys.  Even so, we find ourselves constrained to deny Ms. Wild’s petition.  While the CVRA permits a crime victim like Ms. Wild to “mov[e]” for relief within the context of a preexisting proceeding — and, more generally, to pursue administrative remedies — it does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action.  Because the government never filed charges against Epstein, there was no preexisting proceeding in which Ms. Wild could have moved for relief under the CVRA, and the Act does not sanction her stand-alone suit.

Judge Tjoflat has a notable concurrence (joined by a number of judges) that starts this way:

I concur wholeheartedly in the majority’s opinion.  I write separately to elaborate on the untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers. My concurrence proceeds in three parts.  First, I will outline the litigation models Judge Branch’s dissent and the majority propose: one conferring judicially enforceable rights to crime victims pre-charge, and one conferring such rights to crime victims post-charge.  Then, I will identify two fairness concerns the dissent’s pre-charge model would raise.  Finally, to bring us home, I will expand on the majority’s discussion of the separation of powers doctrine and elaborate on why a pre-charge CVRA model would impermissibly drag federal courts into the business of prosecution.  By laying these problems out in simple terms, my hope is that readers of today’s decision will understand precisely why we are compelled to deny Ms. Wild’s petition.

Judge Branch's dissent, which runs more than 50 pages, includes this road map of its coverage in its introduction:

My dissent proceeds in five parts.  First, I review the facts surrounding the plea deal with Epstein.  Second, I review the procedural history.  Third, I turn to how Congress granted expressly to crime victims in § 3771(a)(5) and (a)(8) a “reasonable” right to confer and a right to be treated fairly and those rights attach pre-charge.  Fourth, I review (A) how the Majority has misapplied and misinterpreted the Supreme Court’s Sandoval decision; (B) how the CVRA text in § 3771(d) expressly provides victims who believe their CVRA rights were violated pre-charge with a statutory remedy — a private right to seek judicial enforcement of their statutory rights in § 3771(a) — when no prosecution is underway; (C) how the statutory interpretation errors in the Majority’s reading of § 3771(d) and (f) leads it to the opposite conclusion; and (D) how even under the Majority’s analysis, the existence of the administrative remedy in § 3771(f) does not make the express judicial remedy in § 3771(d) unavailable to the victims, much less show that Congress did not intend a judicial remedy for crime victims in the “pre-charge” period.  Fifth, I discuss why the CVRA plainly precludes any interference with prosecutorial discretion.

I presume Ms. Wild will now seek Supreme Court review.  I do not believe the Supreme Court has ever taken up a case involving the interpretation of the CVRA, which was enacted by Congress almost two decades ago now.  For a host of reasons, I am disinclined to predict whether this high-profile case might garner the Justices' attention.

Prior related post:

UPDATE: I just saw Paul Cassell, who helps represent Ms. Wild, has this post about this ruling at The Volokh Conspiracy under this full headline: "The Eleventh Circuit Rules Against Jeffrey Epstein's Sex Abuse Victims' Efforts to Rescind His Secret Plea Deal.  The en banc ruling calls the sordid deal a 'national disgrace' but concludes the courts are powerless to enforce crime victims' rights in pre-charging situations -- a disturbing ruling that I hope will be quickly overturned."  Here is a key paragraph from this post about what may come next:

The Circuit's decision is wrong at so many levels that it is hard to see the precedent lasting long.  We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications.  And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims' Rights Reform Act of 2019, which would directly overrule the Circuit's conclusion.

April 16, 2021 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (4)

Lots and lots more good reads from The Appeal

I said here earlier this month that "just about every week, The Appeal has too much great new criminal justice content for me to keep up with."  This week serves as another example, so I will again try to make up for limited time with this round-up of links to highlight some of notable recent Apppeal-ing content:

By Maura Ewing, "Philadelphia D.A. Race Could Ramp Up The War On Drugs. Larry Krasner has been dropping drug possession charges at a growing pace. But his challenger in the May 18 primary wants to send these cases to drug court."

By Piper French, "Oregon’s Tough-On-Crime D.A. Association Faces A Reckoning. Three district attorneys are speaking out against Oregon’s “one-strike-you’re-out” law and breaking ranks with a prosecutors‘ lobby that has long pushed for harsh policies."

By Nikki Trautman Baszynski, "Prosecutors Should Stop Seeking the Death Penalty.  A growing number of Americans oppose the death penalty, but prosecutors — even some who call themselves “progressive”—continue to seek it. All prosecutors should stop pursuing and protecting capital convictions."

By Nikki Trautman Baszynski, "States Should Follow New York’s Lead On Restricting Solitary Confinement. Prisons and jails routinely use prolonged solitary confinement—holding someone in a cell for more than 22 hours a day with no meaningful human contact. New York just passed the HALT Act to limit this inhumane practice, and others states should do the same."

By Elizabeth Weill-Greenberg, "‘It Tears Families Apart’: Lawmakers Nationwide Are Moving to End Mandatory Sentencing. Repealing state and federal mandatory minimums will help address the mass incarceration crisis, advocates hope."

By Elizabeth Weill-Greenberg, "Maryland Bans Sentencing Children To Life Without Parole. The bill gives hundreds of people an opportunity to petition for earlier release."

April 16, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, April 15, 2021

Can capital punishment be another part of a bipartisan criminal justice reform story?

The question in the title of this post is prompted by this lengthy new Marshall Project piece fully titled "Can The Death Penalty Be Fixed? These Republicans Think So: A growing number of conservative lawmakers want to overhaul capital punishment, or end it."  Here are excerpts:

As Oklahoma officials seek to resume putting prisoners to death later this year, [state Rep. Kevin] McDugle has pursued bills in the state legislature to help those on death row prove their innocence ... in a deep-red state at a time when Republicans across the country are increasingly split on the future of capital punishment.  Support for the death penalty used to be popular in both parties, but over the last three decades, Democrats have turned away from the punishment, leaving Republican legislators, governors, prosecutors and judges to fight for its continued use.  At the same time, a small conservative movement — including groups like Conservatives Concerned About the Death Penalty — has been openly questioning capital punishment. It’s now clear their efforts are paying off.

Earlier this year, Virginia became the first Southern state to repeal the death penalty after three Republicans voted with the state legislature’s Democratic majority.  A Marshall Project review found that in roughly half the states with an active death penalty system, Republican lawmakers have recently sponsored or written bills to ban or constrain the punishment, or to help potentially innocent prisoners avoid it.

Although many of these bills are unlikely to pass, their sheer volume suggests a significant shift in conservative views.  Some of these Republican legislators see their bills as incremental steps toward ending the punishment. But others, like McDugle, don’t want to end the death penalty — they just want to fix it. “I want to make darn sure that if we as Oklahoma are putting someone to death, they deserve to be there,” McDugle said. “I know there is human error all the way through.”

Conservatives have been slowly turning away from the death penalty for years, as high-profile innocence cases have helped frame capital punishment as a problem of out-of-control big government.  In 2000, after a series of exonerations of people who had been sentenced to death, the Republican governor of Illinois, George Ryan, declared a moratorium on executions.  At the time, Texas Gov. George W. Bush was running for president, and the national press questioned whether an innocent person had faced execution under his watch; soon after, his fellow Republicans in the state legislature voted to make DNA testing more available for prisoners.  From 2014 to 2019, Republican support for the death penalty, as opposed to life sentences, dropped from 68% to 58%, according to Gallup Polls. Republican legislators in Nebraska voted to repeal the punishment in 2015, although the state’s residents then voted to bring the punishment back.

Some lawmakers have been motivated by anti-abortion arguments about the sanctity of human life and stories of Christian redemption on death row.  Others talk about the cost to taxpayers. South Dakota state Sen. Arthur Rusch previously served as a judge in a capital case.  “My case cost at least $1 million if not more,” he said, noting that the court paid for counseling for some jurors who suffered from post-traumatic stress after the lengthy trial. He was elected to the senate in 2015, and has filed numerous bills to abolish or restrict the punishment; none have succeeded, he said, but each time he brings along a few more peers.

“Changing your mind on an emotional subject like this can be difficult,” said Hannah Cox, who writes columns for Newsmax, a conservative web outlet, and serves as national manager of Conservatives Concerned About the Death Penalty. She’s found that efforts to fix the system can serve as “baby steps,” as she tries to show her fellow conservatives that the system can’t be saved. “If you fix one of 13 problems with the death penalty, there are still another 12.”...

Many conservatives focus on the moral calculation of who deserves the ultimate punishment.  Ohio recently passed a bill, sponsored by a Republican legislator, to ban the execution of anyone with a serious mental illness. Republicans are pushing similar bills in Florida, Kentucky and Missouri.  In Texas, state Rep. Jeff Leach has filed a bill that would ban the death penalty for people who were technically “accomplices” to murders but played a minor role, including getaway drivers.  Much like the Oklahomans, he was motivated by a single case — that of Jeff Wood, who was sentenced to die after his friend killed a store clerk while Wood waited outside in the car, after what they thought would be an easy robbery.

April 15, 2021 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Heard at BOP oversight hearing: "Simply put, our prison system at the federal level is failing."

The quote in this title of this post is sentence from the opening statement by Senator Dick Durbin during this morning's hearing titled "Oversight of the Federal Bureau of Prisons" before the US Senate Judiciary Committee. The only witness for this hearing is Michael Carvajal, the Director of the Federal Bureau of Prisons, and I had hoped by now that there might be publicly available some written testimony from him (as well as official statements from Senator Durbin or others).  Lacking such available written statements as of 10:30am today, I guess I need to do a little "live blogging."  Specifically, how about this from Senator Chuck Grassley's opening statement:

"I consider the passage of the First Step Act as one of the good things I have done since being a Senator.  It's because of the hard work and overwhelmingly bipartisan nature of the First Step Act that I am disheartened with the lackluster implementation.

"It seems as though the Justice Department -- and within that Department, the Bureau of Prisons -- are implementing the First Step Act as if they want it to fail.  I hope this isn't true, but action speak louder than words, and the inaction of the Justice Department and BOP on this paints a very difficult picture."

UPDATE: I new see, as of 11:30pm EDT, that the written testimony of Director Carvajal is now available here.  It runs eight pages, and here are a few notable data points from the statement:

Since March of last year, we have transferred approximately 24,000 inmates to home confinement, with almost 7,000 transferred directly under the CARES Act, a 250% increase in home confinement placements since the beginning of the pandemic....

The Bureau manages the health and treatment of approximately 140,000 inmates in Bureau facilities and RRCs. As of April 6, 2021, the Bureau had 406 positive COVID-19 inmate cases and 47,227 inmates recovered in our federal prisons, while there were 51 positive cases in our RRCs and 55 positive cases in home confinement. With respect to staff, there were 1,243 positive cases and 5,532 recovered cases. Sadly, there have been 4 staff deaths and 230 inmate deaths from COVID-19....

Despite the pandemic, the Bureau is on track to meet the requirements of the First Step Act (FSA).  While the global pandemic certainly impacted the delivery of FSA programs in institutions, critical services such as mental health care, crisis intervention, and religious services have continued unabated throughout the pandemic.  As we have learned more about virus mitigation strategies and begun the process of vaccinating staff and inmates, we have been able to resume much of our programming.  As of April 1, 2021, over 49,000 inmates were enrolled in Evidence-Based Recidivism Reduction (EBRR) Programs and Productive Activities (PA).  With respect to inmate eligibility for FSA Time Credit, of approximately 124,000 inmates reviewed for eligibility, approximately 50% are eligible.

ANOTHER UPDATE: I just saw a copy of the detailed written submitted testimony of Kevin Ring, FAMM President.  Here are excerpts from page one of the lengthy submission:

FAMM was established 30 years ago. During the past few decades, we have learned a great deal about the hardship people in federal prison endure.  Prison is never easy, even under the best of circumstances.  However, the past year has been by far the most difficult year for people in prison and their loved ones that we have ever witnessed.  We appreciate that everyone in the country was affected by the spread of COVID-19 and resulting lockdowns and disruptions, and we acknowledge the unprecedented challenges the leadership of the Bureau of Prisons (BOP) had to face.  Our firm conclusion is that the BOP failed in several ways and that these failures were compounded by an inexplicable and infurating lack of transparency.

I fear we cannot adequately convey to you the desperation, fear, separation, and hardship that we have felt from the families we work with every day.  We asked some of them to share their firsthand experiences with us, so that we could paint a clearer picture of what transpired and how they felt.  Their observations are included in our comments below and in the addendum to this testimony.  The BOP ignored their voices throughout the past year and denied them basic information about the health and safety of their loved ones.

This statement includes a small portion of the concerns articulated by families.  In particular, we have highlighted their concerns regarding healthcare and the management of COVID-19 spread; the appalling conditions resulting from altered operations of the past year; the BOP’s lack of transparency with families and the public; underutilization of release mechanisms intended to protect prisoners; and lacking implementation of the First Step Act.  We share these families’ voices with you in the hope that will finally be heard and that they will inform your oversight.

April 15, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, April 14, 2021

Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast

A few weeks ago, as blogged here, Politico spotlighted some case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  That lengthy piece highlighted reasons why it could turn out, in the words of the headline, that "Many Capitol rioters [are] unlikely to serve jail time."  Politico now has this additional interesting piece on the same beat headlined "Leniency for defendants in Portland clashes could affect Capitol riot cases."  I also recommend this piece in full, in part because the piece showcases how differing charging policies and practices — both at the national level and in individual districts — can lead to differing case outcomes:

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer.  The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.  Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. “They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder.  Some defendants are accused of punching or jumping on police officers during the street battles.  One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters.  In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence.  Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.  Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob....

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.  “There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases.  Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.  “Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”  Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable. “Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol “I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity.  “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.  Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said....

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.  “Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO.  “I think the government should always look at the facts of the case and the individual charges.  We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own....  Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts.  The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity.  That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread. 

Prior related post:

April 14, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 13, 2021

Any interesting new insights about the interesting new folks tapped by Prez Biden for DEA and AAG positions at the Department of Justice?

As detailed in this press release, Prez Biden yesterday announced "His Intent to Nominate 11 Key Administration Leaders on National Security and Law Enforcement."  Two of the nominees could prove be particularly impactful in sentencing and other federal criminal justice reform arenas: 

Anne Milgram, Nominee for Administrator, Drug Enforcement Administration, Department of Justice

Anne Milgram has had a distinguished career as a state, local, and federal prosecutor.  As New Jersey’s Attorney General from 2007-2010, Milgram was New Jersey’s chief law enforcement officer and led the 9,000-person Department of Law & Public Safety, overseeing the New Jersey State Police and the State Division of Criminal Justice....

Kenneth Polite, Nominee for Assistant Attorney General for Criminal Division, Department of Justice

Kenneth A. Polite is currently a partner at Morgan, Lewis & Bockius LLP.  During the Obama/Biden administration, he served as the United States Attorney for the Eastern District of Louisiana, where he championed prevention, reentry, and enforcement in improving public safety, and advised Department of Justice leadership as a member of the Attorney General’s Advisory Committee.... 

I do not know all that much about either of these folks, but I do know that lots of criminal justice advocates are going to be urging them to be reform minded.  Here is some early press coverage of these nominations providing some background:

UPDATE:  A helpful reader commented that Anne Milgram gave this notable TED talk in October 2013 titled "Why smart statistics are the key to fighting crime."  Here is how the 12-minute talk, which has been viewed more than 1 million times, is described:

When she became the attorney general of New Jersey in 2007, Anne Milgram quickly discovered a few startling facts: not only did her team not really know who they were putting in jail, but they had no way of understanding if their decisions were actually making the public safer.  And so began her ongoing, inspirational quest to bring data analytics and statistical analysis to the US criminal justice system.

Because I believe the DEA could and would likely benefit from using more "smart statistics," I hope these ideas become part of DEA operations in the years ahead.

April 13, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (2)

Monday, April 12, 2021

"The Practice and Pedagogy of Carceral Abolition in a Criminal Defense Clinic"

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

For many, carceral abolition might once have been considered irreconcilable with the goals of legal education.  However, the energy produced by recent social movements focused on issues of race and the criminal legal system has helped to advance widespread interest in the long-standing work of abolitionists.  While abolitionist thought has flourished in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal education and practice.  Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively create, the underlying problems that produce violence and harmful behavior in our communities.  Abolition focuses on dismantling our current carceral systems and finding completely new, restorative and collaborative ways of addressing harmful social behaviors.

This Article examines whether abolitionist ethics fit into the practice and pedagogy of law school criminal defense clinics. It argues that although carceral abolition and the institutional role of public defense are an imperfect fit, criminal defense clinics should teach students how to effectively advocate for their clients through a lens of carceral abolition.  Clinicians have an opportunity to expose students to practice that does more than just reinforce or merely critique the criminal legal system as it exists.  Rather clinic students can explore ways to lawyer as “fellow travelers,” operating to actively shield individual clients from the weight of the state, while also supporting the efforts of organizers who are seeking to transform how we deal with social problems.  The Article provides a brief introduction to abolitionist thought, explores the challenges and benefits of incorporating an abolitionist framework into defense clinics, and provides an approach for clinicians seeking to inform their teaching and practice with an understanding of carceral abolition.

April 12, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

DEPC-hosted symposium, "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," now available online

Fentanyl-Analogues-Conference_for-social_v3As detailed in this press release, a coalition of over drug policy, civil rights, criminal justice and public health organizations are urging Congress and the Biden Administration to allow temporary class-wide emergency scheduling of fentanyl-related substances to expire in May 2021.  This letter to members of Congress on this topic highlights why this issue is, in many ways, a sentencing story because "class-wide scheduling of fentanyl analogues ... expands the application of existing severe mandatory minimum sentencing laws enacted by Congress in the 1980s to a newly scheduled class of fentanyl-related compounds":

For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams — 10 paper clips — can translate into a five-year mandatory minimum, with no evidence needed that the seller even knew it contained fentanyl.  In addition, current laws impose a statutory maximum sentence of 20 years for just a trace amount of a fentanyl analogue in a mixture with a combined weight of less than 10 grams."

The advocacy letter also notes the practical realities of existing laws and concludes with a pitch for the Biden Administration to make good of avowed opposition to mandatory minimum sentencing schemes:

Between 2015 and 2019, prosecutions for federal fentanyl offenses increased by nearly 4,000%, and fentanyl-analogue prosecutions increased a stunning 5,000%.  There are significant racial disparities in these prosecutions, with people of color comprising almost 75% of those sentenced in fentanyl cases in 2019.  This holds true for fentanyl analogues, for which 68% of those sentenced were people of color.  In addition, more than half of all federal fentanyl-analogue prosecutions in 2019 involved a street-level seller or other minor role; only 10.3% of these cases involved the most serious functions."...

The expiration of class-wide scheduling is an opportunity for the Biden administration and Congress to make good on a commitment to end mandatory minimums and embrace a public health approach.  The class-wide scheduling discussion allows Congress and this administration the opportunity to choose a new path on drug policy.  The Biden administration has expressed support for ending mandatory minimums. Allowing this policy to expire aligns with Biden’s stated support of ending mandatory minimums and treating drugs as a public health issue

Last month, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law had the honor last month of hosting a multi-panel virtual symposium, titled "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," which explored these issues at great length with a great set of speakers.  Here was how the event was set up:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills.  In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that class-wide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths. Participants will learn about the relationship between class-wide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose.  Participants will be presented with an intersectional discussion of the issue that examines class-wide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

I am pleased to now be able to report that a transcript and captioned recordings of each panel are available now. 

UPDATE: The GAO has now released this new report on this topic under the title "Synthetic Opioids: Considerations for the Class-Wide Scheduling of Fentanyl-Related Substances."

In addition, as detailed at this webpage, The US House of Representatives' Subcommittee on Health of the Committee on Energy and Commerce will hold a legislative hearing on Wednesday, April 14, 2021, at 10:30 a.m. via Cisco WebEx entitled, "An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America."  The written testimony of the scheduled witnesses suggests that class-wide scheduling of fentanyl analogues will be a major topic of the hearing.

ANOTHER UPDATE: The Intercept has this clear and effective article on these topics under the headline "Biden Looks To Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing."  Here are its opening paragraphs:

THE BIDEN ADMINISTRATION is expected to announce support this week for the temporary extension of a Trump-era policy expanding mandatory minimum sentencing to cover a range of fentanyl-related substances.  More than 100 civil rights, public health, and criminal justice advocacy groups sent a letter last week urging Congress and President Joe Biden to oppose any extension of the Trump policy.

The administration can’t extend the policy without congressional action, which it is expected to support during a Wednesday hearing on substance use before the House Energy and Commerce Committee, according to two groups on the letter and several Democratic aides.  The aides note that the administration will likely request additional time to explore the policy’s ramifications and has not yet decided whether it will adopt a full extension.

April 12, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Sunday, April 11, 2021

New statement from prosecutors and law enforcement urging review of extreme prison sentences

The Fair and Just Prosecution folks this past week released this joint statement from "64 elected prosecutors and law enforcement leaders ... urging policymakers to create mechanisms to reduce the number of people serving lengthy sentences who pose little or no risk to public safety, including by creating second chances for many in our nation currently behind bars."  (This quoted language comes from this extended press release about the joint statement.)  Here is the start and key section of the statement:

As current and former elected prosecutors and law enforcement leaders from across the country, we know that we will not end mass incarceration until we address the substantial number of individuals serving lengthy sentences who pose little or no risk to public safety.  We call on all other leaders, lawmakers, and policymakers to take action and address our nation’s bloated prison populations.  And we urge our state legislatures and the federal government to adopt measures permitting prosecutors and judges to review and reduce extreme prison sentences imposed decades ago and in cases where returning the individual to the community is consistent with public safety and the interests of justice. Finally, we call on our colleagues to join us in adopting more humane and evidence-based sentencing and release policies and practices.  Sentencing review and compassionate release mechanisms allow us to put into practice forty years of empirical research underscoring the wisdom of a second look, acknowledge that all individuals are capable of growth and change, and are sound fiscal policies....

Therefore, we are committing to supporting, promoting and implementing the changes noted below, and calling on others to join us in this critical moment in time in advancing the following reforms:

1. Vehicles for Sentencing Review: We call on lawmakers to create vehicles for sentencing review (in those states where no mechanisms exist) that recognize people can grow and change.  These processes should enable the many middle aged and elderly individuals who have served a significant period of time behind bars (perhaps 15 years or more) to be considered for sentence modification.... We do not ask that all such persons be automatically released from custody. We ask only that there be an opportunity, where justice requires it, to modify sentences that no longer promote justice or public safety.

2. Creating Sentencing Review Units and Processes: We also urge our prosecutor colleagues to add their voices to this call for change and to create sentencing review units or other processes within their offices whereby cases can be identified for reconsideration and modification of past decades-long sentences.

3. Expanded Use of Compassionate Release: We urge elected officials, criminal justice leaders (including judges, prosecutors and corrections leaders), and others to pursue and promote pathways to compassionate release for incarcerated individuals who are eligible for such relief, including people who are elderly or terminally ill, have a disability, or who have qualifying family circumstances....

4. High Level Approval Before Prosecutors Recommend Decades-Long Sentences: Finally, we urge our prosecutor colleagues to create policies in their offices whereby no prosecutor is permitted to seek a lengthy sentence above a certain number of years (for example 15 or 20 years) absent permission from a supervisor or the elected prosecutor. 

April 11, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Against Criminal Law Localism"

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

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing.  A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies.  But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.”  Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state — their option is only to add more offenses to the existing state code.  Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups.  Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance.  Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

April 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, April 09, 2021

Might new "Commission on the Supreme Court" perhaps consider recommending creating a sentencing supreme court?

The question in the title of this post is my sentencing-addled reaction to this news today from the White House: "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States."

President Biden will today issue an executive order forming the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts on the Court and the Court reform debate. In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science.

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

To ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining. The Executive Order directs that the Commission complete its report within 180 days of its first public meeting. This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.

Long-time readers know I spend a good bit of time in this space complaining about the fact that SCOTUS does not take up enough sentencing issues (see one recent example here).  Though I seriously doubt that this new Commission will focus on the need I see for a supreme court that takes more sentencing cases, I am always serious in my view that there are many, many important sentencing issues that need more attention.

April 9, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

North Carolina Gov creates "Juvenile Sentence Review Board" to make clemency recommendations

This local story out of North Carolina reports on the creation of an interesting new sentencing review structure created by the state's chief executive.  The full headline of the piece provides the essentials: "Gov. Cooper announces formation of North Carolina juvenile sentence review board: The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate."  Here are more details from the article:

Governor Roy Cooper announced Thursday the formation of the North Carolina Juvenile Sentence Review Board.  The four-person advisory board, established by Executive Order 208, will review certain sentences imposed in North Carolina on individuals who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate.

“Developments in science continue to show fundamental differences between juvenile and adult minds,” said Governor Cooper. “For those who have taken significant steps to reform and rehabilitate themselves, this process can provide a meaningful opportunity for release and a life outside of prison.”

Prior to recommending clemency, commutation, or other action to the Governor, members of the Review Board will conduct a thorough and individualized review based on criteria outlined in the Executive Order, including rehabilitation and maturity demonstrated by the individual. This review will be available to qualifying individuals who have served at least 20 years of their sentence, or at least 15 years in certain instances of consecutive or "stacked" sentences.

In 2017, Governor Cooper signed Senate Bill 445 into law, reducing the wait time for criminal record expungement for first-time, non-violent offenders. Following the passage of Raise the Age legislation, the Governor also signed a proclamation recognizing the expansion of juvenile jurisdiction in North Carolina.

The North Carolina Juvenile Sentence Review Board is a recommendation of the Governor’s Task Force for Racial Equity in Criminal Justice which found that the group of people included in this Executive Order are disproportionately Black. The full report of the Task Force is available here.

The Governor appointed the following individuals to the North Carolina Juvenile Sentence Review Board: Marcia Morey of Durham as Chair. Morey is the Representative for House District 30.... Henry McKinley “Mickey” Michaux Jr. of Durham is a civil rights activist and former member of the North Carolina General Assembly.... Thomas G. Walker of Charlotte is a Partner at Alston & Bird and former U.S. Attorney for the Eastern District of North Carolina.... Allyson K. Duncan of Raleigh is a former judge on the United States Court of Appeals for the Fourth Circuit and the North Carolina Court of Appeals....

The full text of Executive Order 208 establishing the "Juvenile Sentence Review Board" is available at this link.

I noticed a thoughtful person on Twitter react to this news by wisely wondering why Prez Joe Biden has not yet created something like this (ideally for all offenders).  After all, as I have noted in prior posts, the Biden-Sanders Unity Task Force expressly talked about "establish[ing] an independent clemency board, composed and staffed by people with diverse backgrounds [and expanding] Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences."  The current White House has recently called for all persons to help "ensure that America is a land of second chances and opportunity for all people," but we are still awaiting Prez Biden to go from talking the talk to walking the walk.

A few of many prior related posts on federal clemency reforms:

April 9, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 08, 2021

Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act

Last week brought a number of notable Tenth Circuit opinions regarding compassionate release authority after the FIRST STEP Act, as discussed in posts here and here.  A helpful reader made sure I did not miss the latest circuit ruling of note in this arena, this one coming from the Fifth Circuit in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021) (available here).  Here is the start and some key parts of the ruling (with some cites removed):

The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand....

The district court nevertheless thought itself bound by the old preFSA policy statement that appears in § 1B1.13.  That was error for three reasons.

First, the text of § 1B1.13 says it only applies to “motion[s] of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates.  So the policy statement continues to govern where it says it governs — on the “motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13.  But it does not govern here — on the newly authorized motion of a prisoner.

Second, the text of the commentary confirms the limited applicability of § 1B1.13. Application note 4 of the commentary makes clear that a “reduction under this policy statement may be granted only upon a motion by the Director of the Bureau of Prisons.”  U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added).  That note expressly limits the policy statement’s applicability to motions filed by the BOP.

Third, the district court cannot rely on pieces of text in an otherwise inapplicable policy statement.  See United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (refusing to “do some quick judicial surgery on § 1B1.13 . . . [and] assume that what remains . . . applies to defendant-filed as well as BOP filed motions”).  It’s true that application note 1 defines “extraordinary and  compelling reasons” by articulating four categories of reasons that could warrant a sentence reduction. But this “text may not be divorced from context.” United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018)....  And the context of the policy statement shows that it applies only to motions filed by the BOP.  Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

For these reasons, we conclude that neither the policy statement nor the commentary to it binds a district court addressing a prisoner’s own motion under § 3582.  The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue.  See United States v. McGee, --- F.3d ---, 2021 WL 1168980, at *12 (10th Cir. Mar. 29, 2021); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 284; Jones, 980 F.3d at 1111; Brooker, 976 F.3d at 234.

A few of many, many prior related posts:

April 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Spotlighting progressive prosecutor challenges and politics circa spring 2021

Politico has this extended and timely new article headlined "Left-wing prosecutors hit fierce resistance: An uptick in murders across the country is testing their resolve — and their electability."  Here are excerpts:

Larry Krasner’s election in 2017 was a triumph for progressives nationwide: The man who had sued cops 75 times, represented Black Lives Matter, promised to end cash bail — and was widely seen as the most liberal district attorney candidate in the country — won.

Four years later, Philadelphia’s top prosecutor — and one of the leading figures of the country’s criminal justice reform movement — is under siege.  Homicides are skyrocketing in the city, and local officials are grumbling. A former assistant district attorney backed by the local police union is challenging Krasner in the May primary.  And in recent weeks, the Philadelphia Democratic Party broke with years of tradition and declined to endorse the incumbent.

The primary battle is a test of whether the left can maintain its successful campaign electing progressive district attorneys amid an uptick in murders in cities around the country. If Krasner wins, it could signal the arrival of a new era, one in which the public doesn’t recoil from liberal criminal justice policy — even when crime statistics go up.  If he fails, it would be a jolt for politically beleaguered police unions, and a sudden halt to what has been a steady shift leftward in urban DA races.

“His reelection means everything,” said Shaun King, a civil rights advocate and former surrogate for Bernie Sanders’ presidential campaign.  “We always knew that Larry, a lifelong civil rights attorney, would come in and change the system from the inside out, and that doing so would make him a major target.”

Krasner isn’t the only big-city progressive prosecutor meeting fierce resistance.  In California, both San Francisco District Attorney Chesa Boudin and Los Angeles District Attorney George Gascón are facing recall efforts.  Opponents of the left-wing DAs have accused them of letting criminals loose on the streets and turning a blind eye to victims — all criticisms lobbed at Krasner, too.

Krasner has framed his reelection campaign as a choice between the future and the past, “a past that echoes with names like [Frank] Rizzo,” Philly’s former tough-on-crime, racially polarizing mayor, as he put it at a recent candidates forum.  He says that he delivered on his campaign promises by lowering the jail population, exonerating the innocent and reducing the amount of time people are on probation and parole.

He has taken a tack against his Democratic challenger — ex-homicide prosecutor Carlos Vega, who was among the group of employees he fired when he became DA — that once might have been unthinkable.  Krasner is using the local police union as a foil, and reminding voters that Vega is endorsed by the local chapter of the Fraternal Order of Police, whose national union endorsed former President Donald Trump.

As for the spike in homicides — they are up 29 percent compared with this time in 2020, which was the most violent year in three decades — Krasner blames larger societal forces.  “What has happened, and essentially every criminologist agrees on this, is that the pandemic, closing of society and closing of so many different aspects of what protects and surrounds especially young men have disappeared,” Krasner said in an interview.  “So in every single city, you have the elimination of high schoolers being in classrooms at least for periods of time, summer camp, summer job programs, open swimming pools, open recreation centers, organized sports in school, organized sports out of school and after-school programs."...

Murders rose last year in cities around the country, both big and small, suggesting that local explanations alone cannot explain the phenomenon.  Asked whether it’s fair to blame Krasner amid a national trend, Vega said that “the issue is what is happening to our community, our city — he cannot and I cannot address all the ills happening across the nation.”

But Krasner’s approach of declining to accept any blame whatsoever has rubbed some voters and party officials the wrong way.  The politically influential Democratic ward leaders who declined to endorse Krasner were frustrated that “there’s an epidemic of gun violence here, everybody’s been touched by this, and Krasner takes no responsibility,” said a person familiar with their meeting with the district attorney....

Krasner has expressed confidence in his prospects in the May 18 primary, pointing to the reelection of other liberal prosecutors around the country such as Cook County State's Attorney Kim Foxx and Baltimore State's Attorney Marilyn Mosby.  He doesn’t fear a 1990s revival of the tough-on-crime ethos due to the recent gun violence.  “I do not believe that people who have had the wisdom to elect progressive prosecutors all over the country, and increasingly, all of a sudden are going to get the stupids,” said Krasner, “and decide that a phenomenon that is affecting essentially every major city — and is affecting traditional prosecutors’ cities and Republican cities just as much as progressive prosecutors’ cities and Democratic cities — I do not believe all of a sudden they're going to get that stupid and go for this kind of dumb scapegoating.”

April 8, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, April 07, 2021

"When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime"

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

In Romer v. Evans the Court drew a constitutional distinction between civil laws enacted for a broad public purpose that justifies "the incidental disadvantages they impose on certain persons," and laws that have "the peculiar property of imposing a broad and undifferentiated disability on a single named group".  Laws of the second kind "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  The difficulty lies in deciding when the inference properly becomes a conclusion that the law violates the Equal Protection Clause.  The more sweeping and unusual the burdens imposed on the targeted group, the more difficult it may be to discern a common policy explaining them other than the forbidden purpose of harming their targets.  At some point the animus inference may be strong enough to require scrutiny of the laws' purported rationale, including whether it has any actual basis in fact.

An astonishingly broad array of burdens are imposed today on anyone ever convicted of almost any sexual offense of any kind or seriousness, including but extending far beyond their simple inclusion in publicized websites listing "sex offenders."  No similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier.  This "registry regime" raises as strong an inference of animus as there was in any of the four cases in which the Court sustained such claims, and the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive.  Nor does the fact that many sexual offenses are never reported to law enforcement authorities cast any doubt on the validity of those studies or on the legal or policy analyses relying on them.  Much of the registry regime must therefore fall under an Anti-Animus principle.

April 7, 2021 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, April 06, 2021

"Low-Ball Rural Defense"

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

Focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole has increased on both the scholarship and policymaking fronts.  Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors.  As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender — especially those in rural America, with about 90% of the country’s landmass and more than 20% of its population — gets lost in the shuffle.  T

his Article centers these public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding.  It opens with a comparison of two comparable criminal cases with very different results of the accused to spotlight what happens when public defense is privatized.  The Article then discusses the specific perverse incentives that rural public defenders face and burden under when their services are procured by way of competitive bid — not with the intention of arguing that such services should never be bid out, but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so.  The Article then introduces, for the first time, the concept of “noble cause corruption,” previously used to explain and to some extent excuse police malfeasance, in a new context to explain the consequences of some of the choices rural public defenders make while burdening under contract systems, presumably for the good of their clients.

April 6, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Just a week's worth of good reads from The Appeal

Just about every week, The Appeal has too much great new criminal justice content for me to keep up with. So, as I often like to do, I will try to make up for limited time with a round-up of links that here merely highlight some of this notable recent content:

By Elizabeth Weill-Greenberg, "Unless Biden Acts, Thousands Could Go Back To Federal Prison: A Department Of Justice Memo From January Could Have A Devastating Effect On Many Federal Prisoners Who Have Been Released On Home Confinement."

By Veronica Riccobene, "Cuomo Concedes On Two Big Wins For Criminal Justice Reform: The Embattled New York Governor, Who Advocates Describe As A Longtime Impediment To Reform, Signed Bills To Legalize Marijuana And Considerably Restrict Solitary Confinement In The State."

By Molly Greene, "States Should Abolish “Felony Murder” Laws: A Person Who Didn’t Commit Murder Shouldn’t Be Charged With It—But Felony Murder Laws Allow Prosecutors To Do Just That. States Should Repeal These Draconian And Unjust Laws."

By Elizabeth Weill-Greenberg, "D.A.s Are Asking Biden To End The Death Penalty. But Some Are Still Wielding It Themselves: Prosecutors Who Have Championed Criminal Justice Reforms Are Still Seeking Death Sentences, Opposing Appeals, And, In Some Cases, Have Even Petitioned For Execution Dates."

April 6, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

"A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment"

The title of this post is the title of this notable new short report from the Collateral Consequences Resource Center.  This blog posting at CCRC, titled "Second Chance Month: A Federal Reintegration Agenda" provides some background on the report.  Here is the report's introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources has been perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: Authorize federal courts to expunge certain records, grant certificates of relief, and increase use to deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; and, provide relief from firearms dispossession.
  • Federal public benefits: End record-related restrictions in financial assistance to small businesses, SNAP and TANF benefits, and student aid.
  • Employment & licensing: Establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: Allow voting in federal elections regardless of a person's criminal record unless currently incarcerated for a felony conviction.

April 6, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Recommendations for needed reform to Massachusetts clemency process

Via this new Boston Globe editorial, fully headlined "State parole board, clemency process need reform: The Massachusetts Bar Association makes the case for more ‘justice’ at the end of the criminal justice pipeline," I saw that the Bay State's bar association issues an interesting new report on clemency last month. Here are some of the basics via the start of the editorial:

A good deal of attention has focused this past year on policing — the input part of the criminal justice process — but what about the other end of that pipeline? What about those already caught up in the system but looking for clemency as a way out of a long and often unjust sentence?

For them, in Massachusetts, the only exit runs through a seven-member board, a body dominated by those with law enforcement backgrounds that in the past six years has held only one commutation hearing — last October — while some 240 petitions for clemency have been pending. The state Parole Board has basically served as a traffic cop, stalling those petitions, which means that, with rare exception, they never reach the governor’s desk.

Now the Massachusetts Bar Association is putting its considerable heft behind efforts to restructure and broaden the board (also known as the Advisory Board of Pardons when it’s dealing directly with a commutation or pardon), force it to hold to reasonable time standards for acting on petitions, and modernize its guidelines to ensure a “fair, racially unbiased” process.

“In the Commonwealth of Massachusetts, the power of clemency is an under-utilized tool that should be applied on a case-by-case basis to address systemic failures, such as the racial injustice that permeates every step of our criminal legal system,” the MBA’s Clemency Task Force wrote in its recent report to the MBA House of Delegates. That body recently approved a number of resolutions aimed at guiding those reforms.

The full 16-page report of the MBA Clemency Task Force is available at this link.

April 6, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 05, 2021

SCOTUS grants cert to address circuit split over "harmlessness" in federal habeas review

The US Supreme Court's order list this morning includes one cert grant, and it is a habeas case out of the Sixth Circuit: Brown v. Davenport, No. 20-826.  Here is how Michigan's cert petition frames the issue to be considered in this case (which will likely get argued in the fall during the next SCOTUS term):

In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.”  Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test.  The question presented is:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

April 5, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, April 04, 2021

US Sentencing Commission may still lack a quorum, but now it has a podcast!

I am ever grumpy that the US Sentencing Commission has been without a quorum for well over two years (see here), while also being ever hopeful we will get new Commissioner nominees soon (see here and here).  But this past week I was ever pleased to see a notice at the US Sentencing Commission's website spotlighting "COMMISSION Chats: NEW PODCAST SERIES."  This USSC webpage explains:

Brought to you by the Office of Public Affairs, Commission Chats is a podcast series designed to inform the public of the Commission's objectives and work through interviews with senior leadership and other subject matter experts.  Listeners will hear about current projects directly from the staff bringing these projects to completion.

And here is the description of the first entry:

Commission Chats -- Episode 1 (MARCH 2021)

Episode 1: An Interview with Staff Director Ken Cohen In the pilot episode of Commission Chats, Kenneth Cohen, Staff Director of the Commission, discussed our core missions and gave some tips on how the Commission can make a new Hill staffer's life a bit easier. (Published March 30, 2021)

 

UPDATE: The USSC on Monday, April 5 posted Commission Chats -- Episode 2 (April 2021):

Episode 2: ORD Deputy Director Kristin Tennyson and the Interactive Data Analyzer (IDA) Go behind the scenes with IDA in this Commission Chats podcast episode!  Kris Tennyson, Deputy Director of the Office of Research and Data, talks about its development, how to best utilize it, and what the future holds for IDA. (Published April 5, 2021)

April 4, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation?

13cb83a5a0a55a11a5cf72ef54937218Last week, the White House released "A Proclamation on Second Chance Month, 2021."  Here is the full substantive text:

     America’s criminal justice system must offer meaningful opportunities for redemption and rehabilitation.  After incarcerated individuals serve their time, they should have the opportunity to fully reintegrate into society.  It benefits not just those individuals but all of society, and it is the best strategy to reduce recidivism.  During Second Chance Month, we lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.

     My Administration is committed to a holistic approach to building safe and healthy communities.  This includes preventing crime and providing opportunities for all Americans.  It also requires rethinking the existing criminal justice system — whom we send to prison and for how long; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and the racial inequities that lead to the disproportionate number of incarcerated Black and Brown people. 

     We must commit to second chances from the earliest stages of our criminal justice system.  Supporting second chances means, for example, diverting individuals who have used illegal drugs to drug court programs and treatment instead of prison.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be.  It means providing quality job training and educational opportunities during incarceration to prepare individuals for the 21st century economy.  And it means reinvesting the savings from reduced incarceration into reentry programs and social services that prevent recidivism and leave us all better off.

     More than 600,000 individuals return to their communities from State and Federal prisons every year.  Transitioning back into society can be overwhelming for those who are formerly incarcerated as well as their families and communities.  Too many individuals face unfair legal and practical barriers to reentry.  The reentry process is complicated in the best of times, and is even more so with the additional difficulties presented by the COVID-19 pandemic.

     We must remove these barriers.  Every person leaving incarceration should have housing, the opportunity at a decent job, and health care.  A person’s conviction history should not unfairly exclude them from employment, occupational licenses, access to credit, public benefits, or the right to vote.  Certain criminal records should be expunged and sealed so people can overcome their past. 

     By focusing on prevention, reentry, and social support, rather than incarceration, we can ensure that America is a land of second chances and opportunity for all people.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2021 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe this day with appropriate programs, ceremonies, and activities.

I like all the sentiments in this proclamation, and I sincerely hope "all government officials" engaged in "appropriate activities" to observe Second Chance Month.  But as the title of this post is meant to highlight, Prez Biden has one particually appropriate way to " lift up" and "commit to second chances" through the granting of clemency.   He can today and tomorrow and every day, simply with his clemency pen, begin the process of "eliminating exceedingly long sentences" and ensure we are "focusing on prevention, reentry, and social support, rather than incarceration."  Morevoer, because there are currently no federal record relief laws, the only way for federal criminal records to functionally "be expunged and sealed so people can overcome their past" would be through pardon grants.

Especially during a holiday season, I do not think it too much to expect and hope that the President will seek to practice what he preaches.  Or, in this case, practice what he proclaims by getting moving on clemency.   

A few of many prior related posts:

April 4, 2021 in Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Saturday, April 03, 2021

"Science and the Eighth Amendment"

The title of this post is the title of this book chapter by Meghan Ryan just made available via SSRN.  Here is its abstract:

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment.  In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence.  From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. 

There are a number of limits to how the Court can weave science into its decisions, though.  For example, relevant data are difficult to come by, as ethical limitations prevent a wide swath of focused research that could be useful in this arena.  Further, the Justices’ understandings of the complicated science that can help inform their Eighth Amendment decisions are limited.  This chapter examines the relevance and limitations of science — both physical and social — in Eighth Amendment analyses.

April 3, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 02, 2021

ONDCP releases "Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One"

The Executive Office of The President Office Of National Drug Control Policy yesterday released this detailed 11-page document titled "The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One."  For folks interesting in the potential future of the drug war at the federal level, the document makes for an interesting read.  Here is how it gets started (endnotes omitted):

The overdose and addiction crisis has taken a heartbreaking toll on far too many Americans and their families.  Since 2015, overdose death numbers have risen 35 percent, reaching a historic high of 70,630 deaths in 2019.  This is a greater rate of increase than for any other type of injury death in the United States.  Though illicitly manufactured fentanyl and synthetic opioids other than methadone (SOOTM) have been the primary driver behind the increase, overdose deaths involving cocaine and other psychostimulants, like methamphetamine, have also risen in recent years, particularly in combination with SOOTM.  New data suggest that COVID-19 has exacerbated the epidemic, and increases in overdose mortality6 have underscored systemic inequities in our nation’s approach to criminal justice and prevention, treatment, and recovery.

President Biden has made clear that addressing the overdose and addiction epidemic is an urgent priority for his administration.  In March, the President signed into law the American Rescue Plan, which appropriated nearly $4 billion to enable the Substance Abuse and Mental Health Services Administration and the Health Resources and Services Administration to expand access to vital behavioral health services.  President Biden has also said that people should not be incarcerated for drug use but should be offered treatment instead.  The President has also emphasized the need to eradicate racial, gender, and economic inequities that currently exist in the criminal justice system.

These drug policy priorities — statutorily due to Congress by April 1st of an inaugural year — take a bold approach to reducing overdoses and saving lives.  The priorities provide guideposts to ensure that the federal government promotes evidence-based public health and public safety interventions.  The priorities also emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts.  The priorities are:

  • Expanding access to evidence-based treatment;
  • Advancing racial equity issues in our approach to drug policy;
  • Enhancing evidence-based harm reduction efforts;
  • Supporting evidence-based prevention efforts to reduce youth substance use;
  • Reducing the supply of illicit substances;
  • Advancing recovery-ready workplaces and expanding the addiction workforce; and
  • Expanding access to recovery support services.

ONDCP will work closely with other White House components, agencies and Congress to meet these priorities.  ONDCP will also work closely with State, local, and Tribal governments, especially around efforts to ensure that opioid lawsuit settlement funds are used on programs that strengthen the nation’s approach to addiction.

April 2, 2021 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, April 01, 2021

Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act

I flagged here earlier this week the notable Tenth Circuit opinion regarding compassionate release authority after the FIRST STEP Act in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  A helpful reader made sure I did not miss a similar ruling also from the Tenth Circuit today in US v. Maumau, No. 20-4056 (10th Cir. April 1, 2021) (available here).  The Maumau name may sound familiar because, as noted here, the district court ruled "that the changes in how § 924(c) sentences are calculated" after the FIRST STEP Act could help serve as a "compelling and extraordinary reason" to justify resentencing.  The Tenth Circuit today affirms that ruling today in an extended opinion that makes these points at the end of the opinion:

In its third and final issue, the government argues that, “[i]n addition to the controlling [statutory] texts, the relevant legislative history and the structure of the sentencing system also show that a court cannot use the compassionate release statute to override a mandatory sentence based on the court’s disagreement with the required length” of such a sentence.  Aplt. Br. at 39-40.  The underlying premise of this argument is that the district court in the case at hand granted relief to Maumau based upon its disagreement with the length of his statutory sentence.

We reject the government’s argument because its underlying premise is incorrect.  Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions.  Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular.  Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today, . . . would not be subject to such a long term of imprisonment.”

A few of many, many prior related posts:

April 1, 2021 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Who Controls Criminal Law? Racial Threat and the Adoption of State Sentencing Law, 1975 to 2012"

The title of this post is the title of this interesting article published in the American Sociological Review earlier this year that I just came across. This research was authored by Scott Duxbury, and here is its abstract:

Threat theory argues that states toughen criminal laws to repress the competitive power of large minority groups.  Yet, research on threat suffers from a poor understanding of why minority group size contributes to social control and a lack of evidence on whether criminal law is uniquely responsive to the political interests of majority racial groups at all.  By compiling a unique state-level dataset on 230 sentencing policy changes during mass incarceration and using data from 257,362 responses to 79 national surveys to construct new state-level measures of racial differences in punitive policy support, I evaluate whether criminal sentencing law is uniquely responsive to white public policy interests.  Pooled event history models and mediation analyses support three primary conclusions: (1) states adopted new sentencing policies as a nonlinear response to minority group size, (2) sentencing policies were adopted in response to white public, but not black public, support for punitive crime policy, and (3) minority group size and race-specific homicide victimization both indirectly affect sentencing policy by increasing white public punitive policy support.  These findings support key theoretical propositions for the threat explanation of legal change and identify white public policy opinion as a mechanism linking minority group size to variation in criminal law.

April 1, 2021 in Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 31, 2021

Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission?

I was so excited to see Prez Biden announce his first slate of judicial nominations in part because I have been presuming that we would not get needed nomination to the US Sentencing Commission until at least some judge nominees were first put forward.  (Ever the fan of semantic technicalities, I think we should also call any nomination to the USSC to be "judicial nominees" given that the USSC is the only agency located in the judicial branch.)  Adding to my excitement is this recent Roll Call article suggesting that nominations are in the works and may be able to be advanced quickly through Congress in a bipartisan manner.  I recommend the lengthy Roll Call article in full, and its full title highlights its themes: "Help wanted: Revived commission could spark criminal justice changes: Key judicial agency hasn’t had enough members to function for years." Here are excerpts:

The judicial agency that sets such policies hasn’t had enough members to function for years.  “What’s happened is, we’re frozen in time,” said Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.

That could soon change.  The Biden administration has reached out to key lawmakers and the criminal justice community for guidance on a slate of appointments to revive the sentencing commission, a move that also could influence congressional efforts to further change the nation’s criminal justice system.

President Joe Biden will make those picks against the backdrop of a simmering debate about fairness in the nation’s criminal justice system, after a summer of social unrest related to police misconduct sparked a focus on racial inequity in the criminal justice system more broadly.  Advocates say sentencing is a crucial consideration when it comes to overhaul.  A bipartisan group of senators on Friday reintroduced a broad sentencing overhaul bill, which includes provisions that direct the sentencing commission to act to implement it....

The commission must include two additional federal judges, and no more than four members can be from the same political party.  The Senate must approve the members.  The last confirmation vote was for Breyer’s reappointment, four years ago this month, at the beginning of Donald Trump’s presidency.  Breyer is the brother of Supreme Court Justice Stephen G. Breyer, and his term on the commission expires in October.

Trump made nominations for the sentencing commission, including two federal judges with reputations for tough-on-crime approaches.  But those nominees went nowhere because they raised concerns from civil rights groups, Senate Democrats and Iowa Republican Sen. Charles E. Grassley about whether those members would carry out the changes in the 2018 law known as the First Step Act.  Grassley, when he was chairman of the Judiciary Committee, championed the bill with now-Chair Richard J. Durbin of Illinois.  The Senate passed the bill, 87-12, and it became one of Congress’ few major bipartisan accomplishments in recent years.

Grassley said this week that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission “because both they — the White House —and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Durbin said in a written response to questions that the commission “can play a vital role in sentencing reform by informing Congress about federal sentencing developments.” But he also hinted at broader aims for the commission. “For too long, federal sentencing policies have had a disparate impact on Black and brown Americans,” Durbin said. “Our sentencing policies have to reflect fairer standards.”...

Breyer said the Judicial Conference is currently considering a list of judges to submit to the White House for consideration, and he anticipates that the White House will put forward a slate of six nominees.  Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said.  “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.  

A few prior recent related posts:

March 31, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

"Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing"

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

Does the mass media affect judicial decisionmaking?  This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing.  To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. 

I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection.  The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts.  These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system.  Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials.  The Article concludes by suggesting methods for countering such media effects.

March 31, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I was pleased to see late yesterday another important circuit ruling on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Not long thereafter, the Fourth, Sixth, and Seventh Circuits issued somewhat similar opinions generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Yesterday, the Tenth Circuit joined the fun with its extended panel opinion in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  Here is how this opinion gets started:

In November 2000, defendant Malcom McGee was convicted by a jury of three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram or more of a mixture of substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846; (2) causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b); and (3) using a communication facility to commit and facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b).  Because McGee had previously been convicted in the State of California of two felony drug offenses, the district court sentenced McGee to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

Following Congress’s enactment of the First Step Act of 2018 (First Step Act) and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C. § 3582(c)(1)(A), McGee filed a motion with the district court pursuant to § 3582(c)(1)(A)(i) to reduce his sentence based on “extraordinary and compelling reasons.”  The district court denied that motion.  McGee now appeals.  Exercising jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court for further consideration of McGee’s motion.

Though there are various elements to the McGee ruling, I was especially glad to see the panel explain effectively why it was improper for the district court to decide it could not grant a sentence reduction simply because Congress has not (yet) decided to make the sentencing changes in the FIRST STEP Act fully retroactive.  Here is part of the court's discussion on this point (emphasis in the original):

The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A).  But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants.  Indeed, as the Fourth Circuit noted in McCoy, Congress’s purpose in enacting § 3582(c)(1)(A) was to provide a narrow avenue for relief “when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a [sentence] reduction.” Id. at 287 (emphasis in original).  Thus, the possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.

A few of many, many prior related posts:

March 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Prez Biden announces his first group of judicial nominees reflecting diverse backgrounds

As partially detailed in this CBS News piece, headlined "Biden announces first slate of judicial nominees with picks that would make history," Prez Joe Biden has formally announced a first set of planned nominations for judicial openings. Here are basics: 

President Biden on Tuesday rolled out his first slate of judicial nominees, announcing candidates with diverse backgrounds and professional qualifications as he begins to make his own stamp on the nation's district and circuit courts. Of the president's 11 judicial picks, three set to be nominated to the federal district courts would make history if confirmed by the evenly divided the Senate. The White House said the candidates underscore Mr. Biden's commitment to diversity on the federal bench.

"This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession," Mr. Biden, a former chairman of the Senate Judiciary Committee, said in a statement. "Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong."

The president intends to nominate three Black women to fill vacancies on a trio of circuit courts: Judge Ketanji Brown Jackson to the U.S. Court of Appeals to the District of Columbia Circuit; Tiffany Cunningham to the U.S. Court of Appeals to the Federal Circuit; and Candace Jackson-Akiwumi to the 7th U.S. Circuit Court of Appeals....

In addition to announcing nominees to the circuit courts, Mr. Biden also revealed his candidates to fill open seats on federal district courts in Maryland, New Jersey, the District of Columbia and New Mexico, as well as the Superior Court of the District of Columbia.

Three of Mr. Biden's nominees to the district courts would make history if confirmed by the Senate: Judge Zahid Quraishi, tapped for the district court in New Jersey, would be the first Muslim-American federal judge; Judge Florence Pan would be the first Asian-American woman on the district court in D.C.; and Judge Lydia Griggsby would be the first woman of color to serve as a federal judge in Maryland.

With 72 vacancies on the federal courts and another 28 seats set to become open in the coming weeks and months, Mr. Biden has been under pressure to prioritize judicial nominees and mount his own effort to reshape the federal bench after former President Donald Trump succeeded in appointing more than 230 judges to the courts, most of them white men. The president has also been pushed by progressive groups to select nominees with not only diverse backgrounds, but also an array of legal experience, including public defenders, civil rights lawyers and legal aid attorneys.

The full list of the nominees is available via this White House press release.  The nine women and two men on this list seem to represent an array of diverse professional histories as well as personal backgrounds (e.g., I count ten different law schools represented).  Long-time readers know I have been a long-time fan of Judge Ketanji Brown Jackson, in part because she served on the US Sentencing Commission and was once a federal public defender.  I was not surprised at all to see her name on this list, and it is great to see a good number of additional nominees with significant public defender histories (Judges Jackson-Akiwumi and Boardman, Margaret Strickland). And I was pleasantly suprised to see the list include someone I attended high school with (Judge Griggsby) and a fairly recent graduate of The Oho State University Moritz College of Law (Judge Puttagunta). 

March 30, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Monday, March 29, 2021

NY Supreme Court finds that excluding incarcerated people in New York from vaccine access is "arbitrary and capricious and violates Equal Protection"

A state judge in New York Supreme Court ruled today that New York violated the constitutional rights of incarcerated people by refusing to offer them COVID-19 vaccines at the same time it was offered to other groups in congregate settings. In Holden v. Zucker, No. 801592/2021E (N.Y. S. Ct. Mar. 29, 2021) (available here), the judge ordered that every incarcerated person in the state be made eligible for the vaccine immediately, and here is part of her discussion:

In all material respects, incarcerated adults face the same heightened risk of infection, serious illness, and death, as people living in other congregate settings, and even more so than juveniles in detention centers, where individuals have been prioritized for the vaccine.  Moreover, CDC has recommended those confined in jails and prisons should be vaccinated at the same time as those working in the very same facilities.  However, Respondents have excluded those confined in prisons and jails from the COVID-19 vaccine, while granting access to correctional workers, as well as those working and living in other government-run congregate facilities. This Court finds that this exclusion is by definition arbitrary and capricious and violates Equal Protection....

Respondents have irrationally distinguished between incarcerated people and people living in every other type of adult congregate facility, at great risk to incarcerated people’s lives during this pandemic, in violation of State and Federal Equal Protection guarantees, and their decision must be vacated and modified to allow incarcerated individuals as a group to access vaccine eligibility in phase 1b.  People working and living together are at exponentially heightened risk for contracting COVID-19, a virus that can cause long-term health complications and death.  In light of this, New York’s Health Commissioner and Governor Cuomo have specifically prioritized vaccinations for thousands of New Yorkers who work and live in congregate facilities that are the breeding grounds for this deadly virus.  This prioritization is consistent with the unanimous recommendations of the CDC and public health and medical experts.  Despite these scientific recommendations, Respondents have excluded individuals who are incarcerated.  There is no acceptable excuse for this deliberate exclusion as COVID-19 does not discriminate between congregate settings.

March 29, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

New empirical study finds "nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint"

This local press piece from Boston reports on new local empirical work that is likely to garner a lot of attention around the nation. The press article is titled "Study finds not prosecuting misdemeanors reduces defendants’ subsequent arrests," and it discusses at length the findings in this new Working Paper (also here) titled "Misdemeanor Prosecution" authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is the abstract of the Working Paper:

Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.

And here is part of the discussion from the press piece highlighting why this is research could prove so potent:

A study examining the effect of declining to prosecute lower-level nonviolent offenses — a signature policy adopted by Suffolk District Attorney Rachael Rollins that has drawn both praise and scorn — suggests the approach leads to significantly less future involvement by those defendants in the criminal justice system.

The new study, which looked at cases handled by the Suffolk County DA’s office going back to 2004, found that those defendants not prosecuted for lower-level misdemeanor cases were 58 percent less likely to face a criminal complaint over the following two years than those who faced prosecution for similar charges. 

The analysis, which is the first of its kind to rigorously evaluate a policy being embraced by reform-minded prosecutors across the country, provides striking evidence that steering defendants, particularly first-time offenders, away from prosecution and a criminal record can reduce their chances of cycling back into the legal system.

The findings, being released on Monday by the National Bureau of Economic Research, are likely to bring heightened attention to the question of how best to deal with lower-level offenses, an issue that has become a controversial topic among law enforcement officials and advocates who say prosecution of these cases exacts an enormous toll on poor and minority communities without enhancing public safety....

“We think this is pretty compelling evidence of beneficial effects from not prosecuting,” said Anna Harvey, a professor of politics at New York University, who led the research along with Amanda Agan, an economist at Rutgers University, and Jennifer Doleac, an economist at Texas A & M University.  The higher rates of new criminal complaints among those who did face prosecution for lower-level charges, on the other hand, mean “we may in fact be undermining public safety by criminalizing relatively minor forms of misbehavior,” write Harvey and her colleagues....

Alexandra Natapoff, a professor at Harvard Law School who has extensively studied the prosecution of misdemeanor offenses, said the study “gives empirical teeth to just how costly and counterproductive low-level misdemeanor arrests and court criminal convictions can be.”  Natapoff, author of the 2018 book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, said we have paid far too little attention to the harmful impact on individuals and communities of prosecuting misdemeanors, which account for 80 percent of all criminal cases in the US.  “These cases that we treat as chump change, in fact, are destroying lives, and destroying families, and undermining the economic wellbeing of communities thousands of times over every day,” Natapoff said in a recent video explainer on the reach of misdemeanor convictions.

Miriam Krinsky, executive director of Fair and Just Prosecution, a group formed in 2017 to work with reform-minded DAs, called the study an affirmation of the changing approach to prosecution underway in a number of major cities.  “We are seeing a new normal among elected prosecutors who, like DA Rollins, share a view that we have prosecuted too many individuals who can be better addressed by treatment or support through a public health lens,” she said.  “It’s incredibly significant to see research like this that proves the value of the new thinking and the paradigm shift that’s taking place.”

March 29, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Still considering cert, SCOTUS orders additional letter briefing in method-of-execution case out of Missouri

As noted here, the US Supreme Court had fully briefed last November a set of notable questions about how modern Eighth Amendment method-of-execution claims are to be properly resolved.  The Justices considered Johnson v. Precythe, No. 20-287, a case emerging from Missouri, at numerous conferences before today finally having this interesting direction on its order list:

JOHNSON, ERNEST V. PRECYTHE, ANNE L., ET AL.

The parties are directed to file supplemental letter briefs addressing the following question: Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?  Petitioner’s brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 12, 2021.

Respondents’ brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 26, 2021.

Sounds like the Court may be looking for an easy way to boot this case, but perhaps folks with more experience with this intricate universe of litigation may be able to read more (or less) into this order than just that.

March 29, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

SCOTUS summarily reverses Sixth Circuit's reversal of state conviction based on ineffective assistance

The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below.  Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel.  Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel.  But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man.  In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court.  This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fair-minded disagreement.’” Shinn v. Kayer, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U.S.C. §2254(d).  We now reverse....

The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court’s conclusion.  We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis, and we reverse the judgment of the Court of Appeals.

Notably, Justice Sonia Sotomayor dissented from this per curiam ruling, but without any opinion, so this was technically an 8-1 error correction.

March 29, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, March 28, 2021

Senators Durbin and Grassley introduce new "First Step Implementation Act"

As detailed in this press release, on Friday "U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act (FSA), introduced the bipartisan First Step Implementation Act, legislation that aims to further implement the FSA and advance its goals." Here is more from the release:

“In 2018, Congress came together to pass the most important criminal justice reform laws in a generation.  The First Step Act passed by overwhelming bipartisan majorities and was supported by a broad coalition of conservative and progressive groups alike,” Durbin said.  “I was proud to champion this landmark legislation with my friend and colleague, Senator Grassley.  Now we are committed to working together on a bipartisan basis to ensure that the First Step Act and its goals are successfully implemented.”

“Our 2018 criminal justice reforms were the most significant in a generation.  We ought to be doing all we can to ensure their proper implementation.  This new bill now also ensures we make good on the intent of the First Step Act, and further builds on the ideas that led to its passage,” Grassley said.

The First Step Implementation Act of 2021 would further the goals of the FSA by:

  • Allowing courts to apply the FSA sentencing reform provisions to reduce sentences imposed prior to the enactment of the FSA;
  • Broadening the safety valve provision to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism;
  • Allowing courts to reduce sentences imposed on juvenile offenders who have served more than 20 years;
  • Providing for the sealing or expungement of records of nonviolent juvenile offenses; and,
  • Requiring the Attorney General to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

March 28, 2021 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)