Wednesday, March 03, 2021

"Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions"

The title of this post is the title of this notable new article authored by Michael Sousa ow available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

March 3, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 01, 2021

Great and distinctive accounting of a modern evidence-based criminal law reform agenda

Jon Gould and Pamela Metzger have this interesting and important new Hill commentary headlined "Evidence-based paths toward criminal justice reform." I recommend the full piece, and here is how it gets started:

As recent events at the Capitol make clear, criminal legal reform is a moral and civic imperative for the new Biden administration.  President Joe Biden ran, in part, on a promise of reducing the United States’ outsized reliance on incarceration, correctional supervision and fines and fees and committed himself to addressing systemic racism in the criminal system.  Recent events have only increased the urgency for smart, compassionate criminal legal reforms that are based on empirical evidence, rather than on instinct or past practice.

Evidence-based criminal law reform — which draws on lessons learned from medicine and other disciplines — advocates policies driven by the results of research, rather than by anecdote or collective assumptions.  Evidence-based reform is widely known in corrections policy and police investigations and new research has led recent reforms of bail, sentencing and the death penalty.

But if the Biden administration wants to truly move the needle, it must direct its attention to widespread reform opportunities in venues that have often been overlooked.  We suggest that the Biden justice agenda include a focus on research and evidence-based reform in three key areas: prosecutorial charging discretion, participatory defense efforts and the needs of small, tribal and rural, or STAR, communities.

March 1, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Sunday, February 28, 2021

"Prisons are getting Whiter. That’s one way mass incarceration might end."

The title of this post is the headline of this provocative Washington Post commentary authored by Keith Humphreys and Ekow N. Yankah. Here are excerpts:

Research shows that many White Americans see incarceration as a “Black problem,” and the more they see it that way, the less willing they are to do anything about it.  Biden and others might surmount this resistance, however, by highlighting a surprising trend: White Americans have been filling jails and prisons at increasing rates in the 21st century. Reducing incarceration, reformers can credibly argue, will benefit Whites as much as Blacks....

Racial codings of social problems influence public attitudes through two basic processes.  The first is in-group favoritism, which is greater appreciation of and empathy for people we perceive as similar to ourselves.  Such favoritism increases willingness to help a stranger in distress, leave a big tip at a restaurant or grant a promotion at work, among many other kindnesses. In-group favoritism is not limited to race (we can be favorably disposed to someone over something as trivial as sharing a first name or a birthday), and people of all races are prone to it.  But race is clearly one of the many dimensions by which we judge similarity, so that as more White Americans understand that more Whites are behind bars, they may feel increased compassion toward prisoners and voice more support for policies to reduce incarceration.

The other process in play is more disturbing, because it implies an active attempt to harm others.  Sociologists Rachel Wetts and Robb Willer documented that, when told the income gap between White Americans and Black and Latino Americans was shrinking, Whites favored social welfare programs that they believed particularly helped other Whites. But they became less supportive of programs that they thought particularly helped minorities.  Wetts and Willer concluded that perceived threats to the racial hierarchy drive White opposition to helping Black Americans.  The same Whites who recoiled at a Black man rising to the presidency, for example, might oppose prison reforms (shorter sentences, better health care, early release for the sick and elderly) precisely because they believe that the beneficiaries will mainly be Black. Informing such people that prisoners are increasingly White could soften their hostility.

Persuading people to join the fight against mass incarceration because Whites stand to benefit is bound to repulse those already committed to the cause.  But because each state runs its own prison system and sets most criminal penalties, building a nationwide coalition is essential.  That can happen only by shifting the opinion of people who are not moved by — or indeed are even comforted by — the thought of prison populations being mostly Black. And exploding the idea that mass incarceration is only a “Black problem” may allow us to reimagine a broad range of other issues, such as the policing that helps feed it....

In the effort to control Black and Brown people through the criminal justice system, White Americans have shown a stunning willingness to tolerate a huge number of White prisoners as collateral damage.  And once such systems are built, they have a remarkable capacity for self-preservation; jail populations, for instance, have stayed constant even as crime has plummeted.  So we cannot say how well a strategy drawing attention to the Whitening trend will work. In his book “Dying of Whiteness,” physician Jonathan Metzl argues that White people’s racial resentment can lead them to cut off their nose to spite their face — opposing policies that would help them because they would help Black citizens, too. Indeed, numerous economists have concluded that America’s long history of hostility toward Black people has left it the sole advanced economy without some form of universal health care.  If some White Americans are willing to give up health care to keep their place in the racial hierarchy, perhaps they are willing to risk imprisonment as well.  Yet the reversal in rhetoric during the opioid crisis shows that entrenched policies can be changed.

What’s more, in a remarkable moment of convergence, libertarians, religious leaders and racial-justice advocates oppose mass incarceration for separate but overlapping reasons.  Were our country more just and less dismissive of Black pain, growing White incarceration would have no special weight in assessing the moral value of locking up more than 2 million of our fellow citizens.  Opponents of mass incarceration — including Biden — should continue to denounce racism within the criminal justice system.  But the president can also remind Americans that our racial fates are joined: All of us would benefit from the end of mass incarceration.

February 28, 2021 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Saturday, February 27, 2021

What kind of "behind the scenes" clemency moves might Prez Biden's staff be working on?

The question in the title of this post is prompted by a sentence in this Vox piece by German Lopez (strangely) headlined "Biden’s secret weapon for criminal justice reform."  The article is about the power of the President to grant clemency, and I think it a bit strange to call that power a "secret weapon" given all the attention that clemency has received in recent years and given that there has already been a number of prominent calls for Prez Biden to use this power in prominent ways (examples blogged here and here and here and here).  I guess the headline speak to the tendency of some to look past the clemency power as a means to address systemic issues like mass incarceration, and the piece is still a worthwhile read.  Here is an excerpt that includes the sentence that prompts the question in the title of this post:

[S]ome advocates have argued for a ground-up rethinking of clemency: The president could reform the whole process to systematically cut sentences for federal inmates caught in the frenzy of America’s drug war and mass incarceration....

[T]he president or his advisory board could set standards, targeting inmates with long sentences (especially for nonviolent crimes), those under mandatory minimums, or people who have been rehabilitated in prison.

Biden, at least, supports using clemency powers for some of these ends — saying in his criminal justice reform plan that he’d use his clemency powers “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

But since taking office, Biden hasn’t made any public moves in this area — although his staff is reportedly working on it behind the scenes.

Biden could be waiting for his attorney general nominee to get Senate approval. Or he could be concerned about the political risks: If an inmate he releases goes on to commit a crime, it could fuel a backlash. (The White House didn’t respond to a request for comment.)

Prez Biden should have his Attorney General nominee approved next week, so perhaps reported "behind the scenes" work will become public in short order. I remain hopeful that significant use of the clemency power will be part of a multi-prong criminal justice reform push by the Biden Administration, but I will only believe it when I see it.

A few of many prior related posts:

February 27, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of great new reads from various parts of The Appeal

There is so much important and impressive content at The Appeal, I know I often miss some great content within the site's many sections. But I figure I can use this space to make sure others do not miss a few pieces from different part of the site this past week that may be of special interest to sentencing fans:

From The Lab

From The Point

February 27, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Friday, February 26, 2021

Federal prosecutors still pursuing capital charges over a month into Biden Administration

There has been considerable advocacy from progressives urging Prez Biden to commute federal death row and to halt all capital prosecutions (examples here and here).  Against that backdrop, I thought this new Justice Department press release was notable under this full headline: "Death Penalty Sought For Murder Of Fort Campbell Soldier; Victim's murder occurred on the Fort Campbell, Kentucky military installation."   Interestingly, the start of the release specifies that former Prez Trump's last Attorney General was the one who authorized this prosecution in the Western District of Kentucky:

The United States filed Notice of Intent to Seek the Death Penalty for Victor Everette Silvers, in connection with the death of Brittney Niecol Silvers, announced Acting United States Attorney Michael A. Bennett.  Former Acting Attorney General Jeffrey A. Rosen authorized and directed the United States Attorney’s Office for the Western District of Kentucky to seek the death penalty.

According to the superseding indictment, returned on Tuesday, February 23, 2021, Victor Everette Silvers murdered Brittney Niecol Silvers on October 14, 2018, by shooting her with a firearm at the Fort Campbell, Kentucky military installation.  Brittney Niecol Silvers was, at the time of her death, assigned to the 96th Aviation Support Battalion at Fort Campbell, Kentucky.  The penalty for First-Degree Murder (Premediated) is Death or Life Imprisonment.

Victor Everette Silvers is also charged with Attempted First-Degree Murder, Domestic Violence, Violation of a Protection Order, Possession of a Firearm by a Prohibited Person, and two counts of the Use/Carry/Discharge of a Firearm During and in Relation to a Crime of Violence.

This press release is a useful reminder that, while it may not be essential for Prez Biden to make an immediate decision about whether to commute the sentences of persons already on federal death row, there is more immediate urgency for the Biden Administration about whether to continue seeking to add to the number of persons on federal death row.

February 26, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, February 25, 2021

"Merrick Garland, cannabis policy, and restorative justice"

The title of this post is the title of this notable new commentary from John Hudak over at Brookings FixGov blog.  I recommend the piece in full, and here are excerpts:

Judge Garland recognized two realities about cannabis enforcement — one not new to AG nominees, the other quite new.  First, he noted that non-violent, low-level cannabis enforcement is not an effective use of federal law enforcement resources.  There are plenty of other crimes that the Justice Department should be focused on.  Second, he noted that cannabis law enforcement disproportionately impacts communities of color, and more importantly, that the effects of those arrests impact individuals’ economic potential and livelihoods.

The latter is a stark departure for top-level presidential appointees.  Mr. Garland showed a powerful appreciation that arrests for low-level cannabis crimes (and especially convictions for those crimes) contributes to systemic racism and has not a one-time effect on individuals, but a sustained one.  Mr. Garland’s take on cannabis enforcement is that it is an archetype of institutionalized racism in our system.  It systematically impacts communities of color over the course of lifetimes and contributes to lower wages; reduced wealth accumulation; limited educational and job opportunities; and sustained, multi-generational poverty....

Because so much cannabis enforcement takes place at the state and local level, the Justice Department could engage governors, state attorneys general, chiefs of police and other law enforcement leadership, as well as civil rights and criminal justice reform leaders.  By forming a coalition and group to study cannabis enforcement in the states, the Attorney General can better understand how the Justice Department can create programs, adjust policies, and incentivize better behaviors in the states through funding, funding restrictions, and other policy changes.

The Justice Department could also initiate a public campaign to inform state and local leaders about the social and economic impacts of the enforcement of cannabis crimes, especially those that disproportionately impact specific communities.  The attorney general can work with groups to improve the manner in which law enforcement and state and local leadership address both the way in which cannabis enforcement operates in the future and how to make up for past harms.

And last but not least, the Justice Department could lead the way on restorative justice, primarily through clemency.  However, presidential clemency efforts for cannabis will have limited impact, given how few individuals face such charges at the federal level.  Given this the attorney general can encourage the use of presidential and state-level clemency powers.  He can build on a proposal announced last week from Reps. Earl Blumenauer (D-Ore.) and Barbara Lee (D-Calif.) and supported by many drug reform advocacy organizations such as NORML and others.  That proposal urges President Biden to pardon non-violent cannabis offenders.  That recommendation is an important one that will signal the new president’s views on drug policy and demonstrate a change in his approach to law enforcement policy since the 1990s.  It will also honor his commitment during the Democratic debates that cannabis users should not face jail time.

The attorney general and President Biden should seek to coordinate with like-minded governors of both parties to exercise far-reaching pardon powers to the victims of the War on Drugs.  A Rose Garden ceremony to exercise presidential pardon power, while virtually assembling a bipartisan group of governors doing the same would be a substantively impactful effort that would improve the lives of hundreds of thousands of Americans, far beyond what the president can do alone.

Taking a first step toward restorative justice is important given the racist roots and implementation of the War on Drugs.

February 25, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Noticing some notable criminal justice panels at CPAC 2021

As highlighted by this NPR preview, the annual Conservative Political Action Conference (CPAC) kicks off tonight and concludes Sunday with former Prez Trump giving his first big speech since leaving office. Though there are lots and lots of storylines surrounding this year's CPAC, and I was intrigued to see a few criminal justice reform programs appearing on the CPAC 2021 agenda

Notably, one theme for various CPAC panels is the Bill of Rights, with Senator Mike Lee slated to give a speech tomorrow morning titled "Why the Left Hates the Bill of Rights... and We Love It."  But it is not exactly clear that the CPAC folks really loves ALL of the Bill of Rights: the CPAC agenda has a whole lot more folks slated to speak about those parts of the Bill of Rights that primarily deal with civil rights rather than criminal defendant rights.  For example, the Fifth Amendment panel on the first day has four participants focused on "Freedom from Confiscation of Private Property" and nobody speaking about the array of criminal procedure protections also in the Fifth Amendment.  Still, it is encouraging to see that there will be these panels on the even Amendments dealing with criminal issues:

Amendment IV: Unreasonable Search and Seizures

Louis Reed, Dream Corps Justice
Pastor Darrell Scott, CEO of National Diversity Coalition for Trump
Moderated by David Safavian, American Conservative Union

Amendment VI: Rights of the Accused

KT McFarland, American Conservative Union Foundation Board Member

Amendment VIII: Cruel and Unusual Punishment: Does Tough on Crime Messaging Work on Election Day?

Doug Deason, Deason Capital Services LLC
Rep. Byron Donalds (FL-19)
Jim McLaughlin, Pollster for President Trump
Fmr. Rep. Mark Walker (NC-06)
Moderated by Brett Tolman, American Conservative Union Foundation

I find it a bit discouraging to see only two panelists scheduled to discuss the Fourth Amendment and a single person due to talk about the Sixth Amendment (while panels on the "hot button" Third and Seventh Amendments are together bigger).  I find it even more discouraging that the panel on the Eighth Amendment, an amendment intended to preclude certain extreme forms of punishment no matter their political support, is going to be all about about whether extreme forms of punishment are still politically popular.

Still, I am glad these topics will be covered, and this one additional CPAC 2021 panel is especially interesting:

Conservative Prosecutors: Conservative Reforms

David O. Leavitt, Prosecutor for Utah County
Brett Tolman, American Conservative Union Foundation
Kent Volkmer, Pinal County Attorney
Tori Verber Salazar, DA for San Joaquin County, CA
Moderated by Chelsea Murphy, Right on Crime

As regular readers know, the so-called "progressive prosecutor" movement truly is a hot topic in criminal-justice reform and academic circles.  I am quite intrigued to see a panel at CPAC embrace the label "Conservative Prosecutors," and I am very interested to hear what conservative prosecutors would consider "conservative reforms."

February 25, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Wednesday, February 24, 2021

New commentary calling for Prez Biden to revive the US Sentencing Commission

In this post earlier this month, I wondered aloud about when we might reasonably expect Prez Biden to make needed appointments to the US Sentencing Commission.  This issue remained on my mind when I was recently asked to write a commentary for ASU's new Crime and Justice News site.   Specifically, I decided to write on "Reviving the U.S. Sentencing Commission," and here is an excerpt from this commentary (links from original):

[F]ederal sentencing politics and policy development have transformed dramatically in recent years.  Presidents Obama and Trump did not agree on much, but they both supported and signed major federal sentencing reform legislation designed to reduce punishment levels.  Huge majorities in Congress passed the Fair Sentencing Act in 2010 and the FIRST STEP Act in 2018, demonstrating strong bipartisan support for impactful changes to federal sentencing laws and practices.  Congress even titled its 2018 legislation to signal the law was to be just the first in a series of reform steps for the federal justice system.  Meanwhile, a global pandemic and heightened concern about racial injustices in 2020 have only increased calls for change and further heightened the moral and practical imperatives for the U.S. Sentencing Commission to pursue big and bold sentencing reforms.

But, problematically, the U.S. Sentencing Commission presently cannot advance any reforms because persistent vacancies have crippled its ability to function.  Open commissioner slots were left unfilled in the final years of the Obama Administration, and new nominees advanced by President Trump in March 2018 were controversial and got a cold shoulder from the Senate.  Remarkably, the agency Congress created to advance sound “sentencing policies and practices” lacked a quorum for much of the Trump Administration as Congress debated, enacted and oversaw the initial implementation of the landmark FIRST STEP Act.  As of this writing, the Commission currently has only a single Commissioner; the agency now needs six new confirmed members to get back to full strength and at least three new commissioners to be somewhat functional.

The current vacancies not only create a critical need for President Biden to revive the U.S. Sentencing Commission, but also provide a critical opportunity to reimagine who serves on this Commission and how it approaches its work.  Circa 2021, we have not just bipartisan political support for meaningful criminal justice reforms at local, state and federal levels, but also a wide and diverse array of individuals with a deep reserve of sentencing expertise and experiences.  President Biden must make it a priority to nominate a full slate of new commissioners with diverse backgrounds and experiences who will advance an ambitious, grand view of how the Commission can and should seek to meet our current criminal justice moment.

In a letter to Democratic Senators following his election, President Biden signaled an interest in nominating for judgeships “individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”  This sentiment can and must carry over to nominations to the U.S. Sentencing Commission, which has historically been dominated by persons with prosecutorial backgrounds.  With millions of persons federally prosecuted in recent decades and with a third of all U.S. adults burdened with some kind of criminal record, representing “Americans in every walk of life” in this context must include individuals involved in the justice system.

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”  As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.”  Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system.  President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

February 24, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

"Viral Injustice"

The title of this post is the title of this notable new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

February 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Potent call for new Attorney General to address how "mass detention creates mass incarceration"

Alison Siegler and Kate M. Harris have this notable new New York Times op-ed under the headline "How Did the ‘Worst of the Worst’ Become 3 Out of 4?: Merrick Garland can bring bail reform to the federal justice system."  Here is how the efective piece gets started and concludes:

Few see Judge Merrick Garland, President Biden’s pick for attorney general, as a progressive who will reform the criminal legal system. But the Biden administration recently acknowledged that mass incarceration does not make us safer.  And as the nation’s chief federal prosecutor, if confirmed, Judge Garland will have the power to prioritize federal bail reform and reduce sky-high rates of pretrial jailing.  Doing so will decrease mass incarceration, advance racial justice and enable Mr. Garland to stake his claim as a progressive prosecutor.  In fact, federal bail reform is an area where he may have already shown an appetite for change.

In November, voters across the nation overwhelmingly chose reform-oriented progressive prosecutors over “law and order” challengers.  Red and blue districts elected prosecutors who ran on a promise to use their office to enact change. Some of these prosecutors promised to stop pursuing low-level drug crimes.  And at least one has since ended the use of cash bail for certain crimes.  But while the progressive-prosecutor movement has gained momentum at the state and county levels, it hasn’t gotten any traction in the federal system.

Mr. Garland will be able to change this by disrupting the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.  During his time as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Garland was a member of the Judicial Conference of the United States, the main policymaking organization for the federal bench.  Since 2017, the Judicial Conference has repeatedly called on Congress to reform the federal bail law by eliminating what is known as the “presumption of detention” for many drug cases.

While the Supreme Court famously said that freedom should be the default for people awaiting trial, current law directs judges to assume that people charged with certain crimes — including most drug crimes — will flee and endanger the community if released.  That exception has now swallowed the rule, becoming a built-in bias for incarceration that feeds the federal system’s colossal detention rates and stark racial disparities....

As Judge James Carr of the U.S. District Court for the Northern District of Ohio has observed, “Mass detention creates mass incarceration.”  Instead of maintaining a default position that most people awaiting trial should be jailed, Mr. Garland should enact policy changes that limit pretrial jailing to cases where it is genuinely necessary, eliminate all financial considerations from the detention calculus and aim to reduce racial disparities in pretrial detention.

These common-sense changes would mark the true beginning of a progressive-prosecutor movement at the federal level. Prosecutors fostered the culture of detention. Now they must help dismantle it.

February 24, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, February 23, 2021

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

February 23, 2021 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

"Tax Administration and Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated"

The title of this post is the title of this notable and timely new article authored by Leslie Book now available via SSRN.  (Among other virtues, this piece provides yet another example of how all areas of law have something to do with sentencing and corrections.)  Here is its abstract:

In the midst of a devastating pandemic that would sicken millions, kill hundreds of thousands, and cause widespread financial distress, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. CARES provided for the IRS to deliver up to $1,200 for adults and $500 for dependent children.  It was ostensibly structured as a refundable credit to be claimed on a 2020 tax return, but with a twist.  The statute authorized the IRS to pay it in advance, even to those who did not have a tax return filing obligation, and to do so as “rapidly as possible.”  While there were some problems, the IRS generally did remarkably well, and within six months it had delivered about 160 million payments totaling over $270 billion.

This Essay addresses one of those exceptional problems: it involves the IRS’s unexplained change in position on the eligibility of those incarcerated in our nation’s federal, state, and local prisons and jails.  At first, the incarcerated, just like other Americans suffering the effects of the pandemic, received the money that they were entitled to receive under the CARES legislation.  That changed.  In early May of 2020, the IRS announced on its web page that those who were incarcerated were not eligible for immediate cash benefits, worked with prison officials to claw back payments it had made, and stopped in their tracks hundreds of thousands of payments that it had not yet made.  By October, the government faced a complete rebuke of its policy in Scholl v Mnuchin, a class action suit that held that the IRS’s actions were contrary to law and arbitrary and capricious under the Administrative Procedure Act.

By looking at the IRS actions that led to Scholl v Mnuchin, this Essay explores the relationship of tax administration and racial justice.  It reveals how tax administration can normalize and reinforce patterns of racial inequality through the presence of racialized administrative burdens.  Finally, this Essay then considers how the IRS’s actions with respect to restricting payments to the incarcerated population can offer lessons to minimize the risk that future IRS actions will harm people of color, especially given the IRS’s role in delivering benefits.

February 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, February 22, 2021

Notable quotables on criminal justice issues from AG-nominee Merrick Garland during his confirmation hearing

This new Reuters piece provides some choice quotes from U.S. Attorney General Nominee Garland on criminal justice policies during his Senate confirmation hearing today. I sense advocates of criminal justice reform will be pleased with these comments:

DEATH PENALTY

Garland told Congress he used to support the death penalty, including the execution of Oklahoma City bomber Timothy McVeigh, a case he prosecuted.  He said his views have evolved due to concerns about executing innocent people and its disparate impact on communities of color.

“I have had a great pause about the death penalty.  I am very concerned about the large number of exonerations that have occurred through DNA evidence and otherwise,” he said. “The data is clear that it has an enormously disparate impact on Black Americans and members of communities of color.”

MARIJUANA PROSECUTIONS

Garland revealed he will not seek to prioritize marijuana possession prosecutions. “We can focus our attention on violent crimes and other crimes that put great danger in our society, and not allocate our resources to some things like marijuana possession.”

ON SENTENCING REFORM

“We should do as, as President Biden has suggested, seek the elimination of mandatory minimum.  So that we once again give authority to district judges and trial judges to make determinations based on all of the sentencing factors that judges normally apply.”

“We don’t have to seek highest possible offense with the highest possible sentence. ... Legislatively, we should look at equalizing ... what’s known as the crack powder ratio, which has had an enormously disproportionate impact on communities of color.”

This CNN article about the hearings suggests that Garland is on his way to being confirmed as the next U.S. Attorney General, and it will be interesting to see just how he goes about operationalizing these sentiments though DOJ's work and through advocacy to Congress.

February 22, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

February 22, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Saturday, February 20, 2021

"Does Forfeiture Work? Evidence from the States"

The title of this post is the title of this notable new report from the Institute for Justice and authored by Brian Kelly.  Here is the report's executive summary:

This study provides the first multistate analysis of whether forfeiture works to fight crime or is, instead, used primarily to generate revenue.  These competing claims lie at the heart of the policy debate over forfeiture, a legal tool that allows law enforcement agencies to seize and permanently keep people’s cars, cash and even homes if they suspect the property is connected to criminal activity.  Typically, any proceeds from the property go to law enforcement coffers. Critics charge that this creates an improper incentive for police and prosecutors to pursue forfeiture revenue instead of justice, especially under civil forfeiture laws that do not require a conviction or even criminal charges to forfeit property.  Law enforcement and other proponents counter that forfeiture is an essential crime-fighting tool and that forfeiture proceeds can help law enforcement fight more crime.

To test these claims, this study uses a newly assembled set of forfeiture data from five states that use forfeiture extensively — Arizona, Hawaii, Iowa, Michigan and Minnesota — as well as detailed state and local crime, drug use and economic data.  The study examines forfeitures under state law alone as well as those conducted in concert with the federal government.

Results show:

  • More forfeiture proceeds do not help police solve more crimes — and they may, perversely, make police less effective at solving violent crimes.
  • More forfeiture proceeds do not lead to less drug use, even though forfeiture proponents have long cited fighting the illicit drug trade — and the reduction of drug use — as a primary purpose of forfeiture.
  • When local budgets are squeezed, police respond by increasing their reliance on forfeiture.  A one percentage point increase in unemployment — a common measure of economic health — was associated with an 11% to 12% increase in forfeiture activity.

In other words, this study finds no material support for the claims that forfeiture fights crime, either by enabling police to solve more crimes or by reducing drug use.  It does, however, find economic conditions have a large and statistically significant effect on forfeiture activity, suggesting that at least some forfeiture activity is motivated by a desire for revenue.

These results, like those from earlier studies, are particularly salient now, when local government budgets are suffering due to the COVID-19 pandemic.  The data suggest that during economic times like these police may pursue more forfeiture.

This report adds to mounting evidence that forfeiture fails to serve the public good, all while violating basic rights to property and due process, thus demonstrating the pressing need for forfeiture reform.

February 20, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, February 19, 2021

"Should Public Defenders Be Tweeting?"

The question in the title of this post is the headline of this notable new Vice article.  I recommend the lengthy piece in full, and I suspect more than a few readers might have more than a few thoughts on this important modern-day topic.  Here are just a few excerpts from a piece with lots of thought-provoking elements:

Public defenders had blogged about their work as long as a decade ago, and tweeting about arraignments wasn’t new, but [Scott] Hechinger and others in New York’s PD scene are responsible for popularizing the trend.  As it’s grown, however, criminal justice reform advocates and formerly incarcerated people have started to argue that these posts can put clients at risk of retaliation from judges and prosecutors, violate their privacy, and present ethical quandaries for public defenders talking so openly about their work on Twitter.  The optics of white public defenders gaining likes or retweets on stories of Black and brown suffering has also been called into question.  As advocacy efforts morph from live-tweets to slick video productions, and gain traction with a public increasingly likely to support justice reform, the question has become: who should be telling the story?...

They are a powerful voice in the justice system, but one fear for public defenders and defendants alike is that the judge, prosecutor, or parole officer will retaliate against tweets that are critical of their actions, said Qiana Johnson, executive director of Life After Release, a program that assists people with re-entry. Even those who have already served a sentence are often constrained from speaking out by probation or parole conditions. “Their advocacy could cost them,” she said....

There have been complaints filed against defense attorneys over their use of social media in recent years, though those are not public, said Ellen C. Yaroshefsky, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University, who studies ethics in law.  Prior to 2014, a Virginia attorney was disciplined for blogging about the cases he had won as a defense attorney, an act that constituted self-advertising, the state bar found, according to the 2013 law letter written by Nicole Hyland as part of an ethics committee.  An Illinois public defender was fired from her job and suspended by the bar for 60 days after posting client details in 2007 and 2008 on Facebook, including a picture of her client’s leopard-skin underwear — evidence in a trial.  Others have been disciplined for disparaging clients or judges.  In March 2018, the American Bar Association issued a formal opinion limiting the ability of attorneys to blog or comment publicly about their cases.

Many on PD Twitter have also been called out for “trading on the suffering of Black and brown people,” said [Nicole] Smith Futrell, cautioning that “just because you’re a public defender representing someone who’s experienced [the system,] it doesn’t mean that you’ve experienced that thing that you now get to tell.”  As defense attorneys push advocacy in new directions and accept media opportunities, they are encountering many of the ethical questions journalists have long wrestled with: does the individual or the larger narrative take precedence?  When does “storytelling” become exploitative?...

Brendon Woods, the chief defender in Oakland’s Alameda County Public Defender’s Office, has been in the field since the late 90s when there were a few shared desktop computers available for public defenders to use. He sees plenty of law enforcement outfits on Twitter and said the voices of public defenders have been game-changing. They have power, he said, but that power must be used with care.  “Our clients, they’ve been dehumanized by the system so much, you don’t need to have it happen from people who are tweeting or posting stories on Facebook,” he said, “and without any thought or strategy being put into them or why they're doing it.”

February 19, 2021 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (1)

Thursday, February 18, 2021

ACLU writes to AG-nominee Merrick Garland urging action on "five critical issues"

The ACLU today released this notable seven-page letter directed to Attorney General-Designate Merrick Garland. Here is how it gets started:

Congratulations on your nomination to lead the U.S. Department of Justice (DOJ).  For nearly 100 years, the ACLU has been our nation’s guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. Your nomination comes at a moment when America faces an overdue reckoning with racial injustice that can start to be addressed with policies such as adopting a federal use-of-force standard, decriminalizing marijuana, ending mandatory minimum sentencing, and abolishing the death penalty.  We applaud President Biden’s pledge to heal our country and reform our criminal legal system, and we look forward to working with him and DOJ to advance our shared goals.

At your confirmation hearing before the Senate Judiciary Committee on February 22, we urge you to make clear that under your leadership DOJ will adopt policies to build a more racially just criminal legal system.  In addition to matters we anticipate that you already plan to address, we urge you to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.

February 18, 2021 in Who Sentences | Permalink | Comments (3)

"Rigging the jury: How each state reduces jury diversity by excluding people with criminal records"

The title of this post is the title of this notable new report from the folks at Prison Policy Initiative. Here are excerpts from the report's first part:

In courthouses throughout the country, defendants are routinely denied the promise of a "jury of their peers," thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted (or sometimes simply accused) of crimes from serving on juries. These laws bar more than twenty million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices exist in every state and often ban people from jury service forever....

As we have chronicled extensively, the criminal justice system disproportionately targets Black people and Latinx people — so when states bar people with criminal convictions from jury service, they disproportionately exclude individuals from these groups.  Of the approximately 19 million Americans with felony convictions in 2010, an estimated 36% (nearly 7 million people) were Black, despite the fact that Black people comprise 13% of the U.S. population.  Although data on the number of Latinx people with felony convictions is difficult to find (because information about Latinx heritage has not always been collected or reported accurately within the criminal justice system), we do know that Hispanic people are more likely to be incarcerated than non-Hispanic whites and are overrepresented at numerous stages of the criminal justice process.  It stands to reason, then, that Latinx populations are also disproportionately likely to have felony convictions.

As a result, jury exclusion statutes contribute to a lack of jury diversity across the country. A 2011 study found that in one county in Georgia, 34% of Black adults — and 63% of Black men — were excluded from juries because of criminal convictions. In New York State, approximately 33% of Black men are excluded from the jury pool because of the state’s felony disqualification law.  Nationwide, approximately one-third of Black men have a felony conviction; thus, in most places, many Black jurors (and many Black male jurors in particular) are barred by exclusion statutes long before any prosecutor can strike them in the courtroom.

February 18, 2021 in Collateral consequences, Who Sentences | Permalink | Comments (0)

Tuesday, February 16, 2021

"Revocation and Retribution"

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

Revocation of community supervision is a defining feature of American criminal law.  Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year.  While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release.  Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.”  Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation.  Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

February 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 15, 2021

Any guesses for when we might again have a fully functioning US Sentencing Commission?

It has been far too long since the US Sentencing Commission has been fully functional, and this post is my indirect way of saying that I hope getting the USSC back in action with a full slate of Commissioners is a top priority for the Biden Administration.  But, given that we still do not yet have a new confirmed Attorney General nearly a month into the new administration, and especially with other business (and other judicial openings) sure to be a higher priority, I am wondering if it may still be months before we can start talking seriously about what the "new Commission" ought to be doing to advance criminal justice reform.

Former Prez Donald Trump's track record with respect to the US Sentencing Commission was quite spotty.  As noted in this April 2017 post, the USSC had only two of seven commissioner slots filled at the start of 2017 (which led the Commission not to advance any formal amendments to the guidelines in that year).  Senate confirmation of two nominees gave the USSC a functioning quorum to be able to move forward with 2018 guideline amendments.  But a slate of new nominees to the Commission by former Prez Trump in March 2018 were controversial and got a cold shoulder from the Senate leaving the USSC again with only two Commissioners (and thus without a quorum) as it entered 2019.  Prez Trump  thereafter did not announce new nominees until August 2020 and, according to this recent Law360 piece, those names were never even formally sent to the Senate.

Long story short, the US Sentencing Commission was only somewhat functional for a small portion of the last four years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff has completed lots of research and has churned out many reports in the interim, but the FIRST STEP Act's passage in December 2018 made it particularly problematic for the USSC to have been non-functional in terms of formal amendments or agendas in recent years.

As reveled on this official US Sentencing Commission page, right now the USSC currently has only a single Commissioner and so will need six new confirmed members to be back to full strength (and it needs at least three new commissioners to have a quorum to even be somewhat functional).  All these vacancies present Prez Biden with an important opportunity to revive and reshape the work of the Commission at a time when the work of the Commission could and should be especially important.  And, as I noted in this post in November, the criminal justice reform recommendations of the Biden-Sanders Unity Task Force (first discussed here; available here pp. 56-62) included this notable recommended agenda for the USSC:

Sentence Length and Early Release: Task the U.S. Sentencing Commission with conducting a comprehensive review of existing sentencing guidelines and statutory sentencing ranges, with the goal of generating legislative recommendations, promulgating new guidelines, and issuing formal guidance to reduce unreasonably long sentences and promote rehabilitation.  The Commission should make recommendations regarding early release options, including expanding good time credits, reinstating federal parole, and creating a “second look” mechanism permitting federal judges to reevaluate sentences after a certain amount of time served.  Any such options should use a systematic, evidence-based approach that reduces risks to public safety, prevents racially disparate implementation, reduces the total number of people under federal custody and supervision, and limits the duration and conditions of supervision.

I am hopeful that the Biden Administration is already working toward developing a list of nominees for the Commission (which, by statute, have to be bipartisan). I am especially hopeful that the Biden team might be already getting input on this list from key folks in the Senate so that any eventual slate of nominees will be well-received and quickly confirmed.  But, as suggested at the outset, because of various competing priorities and the (usual and unusual) inside-the-Beltway distractions, I really do not have a good guess to the question in the title of this post.

February 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

Sunday, February 14, 2021

"Black on Black Representation"

The title of this post is the title of this new article authored by Alexis Hoag now availble via SSRN.  Here is its abstract:

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services.  This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants.  Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship.  Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches.  First, it connects indigent representation to existing literature from other fields — clinical therapy and education — both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients.  To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust; factors that the American Bar Association identifies as integral to criminal defense.  Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine.  The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to poor people.

February 14, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (4)

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, February 13, 2021

Notable reviews of extreme sentences in Pennsylvania

The tail end of this week brought a number of notable stories about notably extreme sentences (and a few releases therefrom) in Pennsylvania.  I will use headlines and links to cover a lot of ground involving a number of intersecting and overlapping stories:

"Report raises questions with second-degree murder sentencing in Pennsylvania"

"Pa.’s second-degree murder charge is outdated, unfair, Fetterman says"

"‘They don’t deserve to die in prison’: Gov. Wolf grants clemency to 13 lifers"

"The nation’s oldest juvenile lifer, Joe Ligon, left a Pa. prison after 68 years"

The first pair of stories relate to this notable new report by the Philadelphia Lawyers for Social Equity titled "Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Sentencing."

February 13, 2021 in Clemency and Pardons, Data on sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 12, 2021

"Direct Collateral Review"

The title of this post is the title of this notable new Columbia Law Review piece authored by Z. Payvand Ahdout (hat tip: How Appealing). Here is is abstract:

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings.  But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal.  Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts.  And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final.  This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption.  This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

February 12, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Litigation over clergy halts Alabama execution (and divides Justices in notable ways)

Though the federal government carried out the first three execution of 2021 last month, the first state execution in the US was scheduled to take place last night in Alabama.  But, as this local article explains, today "Willie B. Smith III remains alive on death row in Alabama, after the U.S. Supreme Court upheld a ruling that required Smith’s spiritual advisor to be in the execution chamber with Smith when he was given the lethal injection."  Here is more:

The ruling came down around 11:08 p.m. Thursday night, with the Alabama Department of Corrections calling off the execution one minute later.

In the concurring ruling, Justice Elena Kagan said that the law “guarantees Smith the right to practice his faith free from unnecessary interference”. “The Eleventh Circuit was right to bar Alabama from executing Smith without his pastor by his side,” Kagan said. “Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.”

Kagan along with Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Amy Coney Barrett all denied the Alabama Attorney General’s Office’s motion to overturn a lower court ruling requiring Smith’s spiritual advisor to be in the execution chamber. Justice Brett Kavanaugh along with Justice John Roberts, wrote the dissenting opinion.

Smith’s other claim as to why the execution should be called off centered on what his lawyers called an intellectual disability.  While the 11th Circuit Court of Appeals granted a stay based on that claim Wednesday night, the U.S. Supreme Court lifted that stay around 11 p.m. Thursday.

Smith, 51, was originally set to die by lethal injection at 6 p.m. inside of William C. Holman Correctional Facility in Atmore....  Smith was sentenced to death in 1992 for the Oct. 1991 abduction, robbery and murder of Sharma Ruth Johnson. Johnson’s body was found in the trunk of her burned car with a shotgun wound to her head, after being shot execution style at a east Birmingham cemetery. 

The full SCOTUS discussion of these issues is available at this link, but the opinions released by the justices are just concurrences and dissents from the denial of Alabama's application to lift the stay put in place by the Eleventh Circuit.  As Amy Howe explains in this SCOTUSblog post, the exact votes here are unclear even though it is clear that this issue has divided the more conservative block of Justices:

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber.  Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy.  The remaining two justices — Justices Samuel Alito and Neil Gorsuch — did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

This NPR piece about the ruling provides some context for how SCOTUS has struggled with execution clergy issues in recent years:

The Supreme Court justices have grappled with the same legal question at the core of the Smith case in the last two years, but have ruled very differently in each situation.  In 2019, the Supreme Court, by a 5-4 vote, ruled that Alabama could execute Domineque Hakim Ray, a Muslim man convicted of murder.

The appellate court had temporarily blocked the execution because the state barred the man from having a Muslim imam at his side in the death chamber. Alabama said only the prison's Christian minister would be allowed in.

A month later, in a 7-2 vote, the justices granted an eleventh-hour stay of execution to Patrick Henry Murphy, a Buddhist prisoner in Texas who had been denied a Buddhist religious adviser at his side in the death chamber.  The difference between the two cases, according to the conservative court majority, was that the Muslim prisoner waited too long to ask for an imam.

It's unclear what the state of Alabama's next move will be in the Smith case.

That both Justices Alito and Gorsuch remained silent and yet may have voted for the stay here is fascinating; these two have long seemed, by virtue of their votes and opinions, to be the two Justices most eager to ensure condemned inmates fail in any and all efforts to block or delay scheduled executions.  In addition, I believe this case may represent the very first time in which, in a closely divided vote, Justice Barrett joined an opinion of her more liberal colleagues.  Justice Barrett could have, of course, opted for the "silence is golden" approach adopted by Justices Alito and Gorsuch; that she notably decided instead to sign on to Justice Kagan's concurrence is quite noteworthy.

February 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Reminder of next week's "Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

OSJCL-Symposium_College-graphic-768x509I flagged a few weeks ago this great symposium taking place (on Zoom) next Friday, February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event. Registration for this event is now available at this link, and here is how the event is described and organized:

The Ohio State Journal of Criminal Law, in collaboration with the Drug Enforcement and Policy Center, is pleased to announce our live symposium for Spring 2021, “Prosecutorial Elections: The New Frontline in Criminal Justice Reform.”  This virtual series is aimed at provoking thoughtful and well-rounded discussion surrounding the responsibility of the modern prosecutor in ushering in criminal justice reform and how that responsibility intersects with their role to uphold the law.  The panelists, including both academics and practitioners, will explore these questions from a variety of perspectives.  A schedule for the symposium can be found below.

Schedule:

10:15 a.m.-10:30 a.m.: Opening Remarks and Introduction

10:30 a.m.-12:00 p.m.: Prosecutor 2.0 — How has the job changed since the emergence of the “progressive prosecution” movement and what impact has this had on campaigns?

12:00 p.m.-1:30 p.m.Lunch break

1:30 p.m.-3:00 p.m.: Prosecutorial Biases as a Catalyst for Systemic Racism — The intersect between prosecutorial discretion, prosecutorial ethics, and racial inequity in criminal justice.

3:30 p.m.-5:00 p.m.:Prosecutorial Discretion and Drug Reform — The role of prosecutors in perpetuating the War on Drugs and the link to mass incarceration.

5:00 p.m.: Closing remarks

A list of the speakers and their biographies can be found here.

February 12, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, February 11, 2021

How about some clemency grants from Prez Biden while his team works on grander clemency plans?

I am very pleased to see this lengthy new Politico piece shining a light on federal clemency under this full headline: "Trump left behind a clemency mess.  The clock’s ticking for Biden to solve it. Lawyers and criminal justice advocates are pushing Biden to act swiftly.  But Covid and the economy are pushing action back."  I recommend the whole piece, and here are excerpts:

Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations.  Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well.  Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.

But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog.  Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.  “They couldn’t have had time to formulate a plan,” the person said.

More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away.  One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice.  Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union's Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues....

“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”

The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.

In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further. In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.

In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden. But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.

Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.

But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources. “In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”...

Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.

“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. ... It takes courage to do it this year.  We are ready for this.  It’s time. It’s past time.”

Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.

The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases.  The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.

Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden. “There are ... more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances ... and destroying lives and families. It’s a total loser, but we do it.”

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that "It’s time. It’s past time."  I also share Mark Osler's view that this could have and should have been a transition priority for the Biden team.  Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a "comprehensive plan" for effective clemency reform.  But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

I am certain that there must be many dozens, and probably many hundreds, of cases that ought to be federal clemency "no-brainers."  (For example, women and men on the CAN-DO site or the lifer marijuana offenders assembled at Life for Pot or person highlighted by NACDL’s Trial Penalty Clemency Project.)  I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants to be part of Prez Biden's 100-day agenda and legacy.  As Senator Cohen highlights, every day of delay is another day "wasting their lives, wasting the federal government’s finances, and destroying lives and families."

A few of many recent related posts:

February 11, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thoughtful accounting of the dynamic world of prosecutorial discretion

Marc Levin has this notable new Law360 commentary headlined "DOJ Charging Memo Rescission Aids Prosecutorial Discretion."  The piece covers a lot more than just the new interim DOJ charging memo (discussed here), and I recommend the entire discussion in full.  Here are excerpts:

[W]hile prosecutors have always declined cases, recently elected prosecutors in urban and even some suburban jurisdictions face backlash for presumptively declining to pursue certain categories of cases, such as low-level drug possession and trespassing on public property.

Of course, exercising discretion on which charges to bring in a particular case is not the same as designating categories of cases in which the default policy will be nonprosecution.  Critics charge that the latter displaces the role of legislative bodies in criminalizing conduct.

However, even policies that presumptively decline prosecution for certain offenses can be consistent with the rule of law, provided they operate within constraints that ensure accountability, individualized review and transparency....

In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of.  Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.

Default nonprosecution policies, even if implicit rather than announced, are routinely applied to such antiquated statutes, but also are required by the dramatic growth of criminal law in recent decades.  As a result, countless obscure crimes are largely unknown and unprosecuted.  Many are regulatory offenses affecting business and recreational activities, such as federal laws criminalizing ketchup that isn't thick enough, bringing too many nickels when traveling overseas or writing a check for less than $1.  Like trespassing on public property or drug possession, these obscure offenses often lack an identifiable victim.

A last-minute executive order by former President Donald Trump rightfully urges that civil, rather than criminal, penalties be pursued for unknowing violations of regulations....

This executive order also encourages prosecutors not to bring charges for such crimes if the prospective defendant did not have a culpable mental state, even though it is not required by the law or regulation.  While laudable, this is not fundamentally different than presumptively declining to prosecute an offense altogether, since it effectively restricts the scope of an offense that, as written, creates strict criminal liability.

If prosecutors indeed have the rightful authority to decline pursuing these categories of obscure offenses, then local district attorneys can presumptively not prosecute drug possession or public trespassing.  The ubiquity of the latter is simply not a meaningful philosophical distinction.

Some would argue another difference is that those who tend to be subject to drug and trespassing laws are much less powerful.  Others would point to the neighborhood quality-oflife concerns as a distinguishing factor, but that goes to the question of whether prosecution or other strategies are most effective, not the legitimacy of prosecutorial declinations.

Prosecutors must decide not just whether laws have been violated, but whether prosecution is in the public interest, taking into account the trade-off in pursuing other cases and whether prosecution would be more likely than other approaches to advance goals such as public safety and public confidence in the justice system.

In military terms, lawmakers give prosecutors ammunition, but prosecutors decide not only when to shoot but which battles should be fought.

A few recent related posts:

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

Wednesday, February 10, 2021

"The Sixth Amendment Sentencing Right and Its Remedy"

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

The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences.  The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right.  The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis.  Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice.  What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment — the liberty interests of criminal defendants and democratic input into individual criminal cases.  Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

February 10, 2021 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

State court limits new LA County DA's new directives limiting use of sentencing enhancements

I have noted in prior posts linked below the various reform efforts of new Los Angeles County District Attorney George Gascón and the push back these efforts have reeived from other prosecutors.  This week, these issues resuted in a notable state court ruling, and detailed in this Los Angeles Times article headlined "Several of D.A. George Gascón’s reforms blocked by L.A. County judge."  Here are excerpts:

Los Angeles County Dist. Atty. George Gascón was barred from implementing a significant part of his sprawling criminal justice reform platform Monday, after a judge ruled his plan to end the use of sentencing enhancements in thousands of criminal cases violates California law.

The order stemmed from a lawsuit filed late last year by the union that represents hundreds of L.A. County prosecutors, alleging some of Gascón’s plans exceeded his legal authority and put line prosecutors in an ethical bind.  Sentencing enhancements can add several years to a defendant’s time in prison if certain criteria are met, such as using a gun causing severe injury during the commission of a crime, or being a documented gang member.

The lawsuit took particular issue with Gascón’s policy of barring the use of sentencing enhancements for prior felony convictions, arguing that under California’s “three strikes” law, prosecutors do not have discretion “to refuse to seek the enhancement.”

In his ruling, Judge James Chalfant noted that the “three strikes” law requires prosecutors to “plead and prove” all prior serious or violent felony offenses.  He found Gascón’s directive ordering prosecutors not to file such enhancements unlawful, and cited several appellate cases that upheld the argument that strike offenses must be charged under state law.

“A district attorney’s discretion is not unlimited. He or she must work within the framework of the criminal system,” Chalfant wrote.  “The legislature also is entitled to enact laws intruding on the executive or judicial branches of government so long as they do not defeat or materially impair that branch’s core function.”

In a 46-page ruling, Chalfant also barred Gascón from ordering prosecutors to dismiss any sentencing enhancements in active cases, unless they can argue that there is insufficient evidence to prove the enhancement or that the dismissal would be in the interest of justice.

Since Gascón took office, many prosecutors have appeared in court and read a statement — which some derisively refer to as “the script” — acknowledging they were seeking to dismiss enhancements under Gascón’s order because they believed the underlying penalties for the crime in question were “sufficient to protect public safety and serve justice.”

Judges had already been blocking such motions to dismiss on those grounds, but Chalfant’s ruling also stopped Gascón from ordering prosecutors to read the statement, finding the remarks themselves are “inaccurate and incomplete” and would require prosecutors to commit an ethical violation by making an inaccurate representation to the court.

The ruling affects a significant number of cases in L.A. County, where there are 10,794 defendants currently facing charges with sentencing enhancements, according to statistics provided to The Times in response to a public records request.  Gascón can still bar prosecutors from filing most sentencing enhancements in new cases, though enhancements for prior strike offenses must still be charged, according to the order....

Gascón said he will appeal Chalfant’s ruling, which he acknowledged as an expected hurdle in his broader mission to reimagine criminal justice in Southern California. “More than 2 million people in Los Angeles County voted for a system of justice based on science and data, not fear and emotion.  Nevertheless, I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism,” he said in a statement.  “My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety.”

In a reply filed in January to the union’s suit, lawyers for L.A. County argued that prosecutors have broad discretion over whether to file strike enhancements and contended that if a judge granted the union’s petition, it would be an unprecedented overreach from the bench.  “The Union asks for something no California court has ever ordered, as no California court has ever deemed itself to have the power to require ... a district attorney to plead any particular criminal charge or sentencing enhancement,” the reply read. “To the contrary, courts have long held that such charging power is almost entirely unreviewable and is uniquely within the district attorney’s discretion.”

The day he took office, Gascón announced an array of sweeping changes that included putting an end to the use of enhancements, severely restricted when prosecutors can seek to hold defendants in lieu of bail, ended the use of the death penalty in L.A. County and stopped the practice of trying juveniles as adults.  The seismic policy shifts have drawn Gascón praise from other progressive prosecutors and criminal justice reformers nationwide, but left him at odds with his own staff and many of the local law enforcement officials he must work with to try cases.

The union lawsuit was being watched closely by law enforcement officials around the state and highlighted a broader divide between traditionalist and reform-minded prosecutors that has seemingly grown wider in recent weeks.  San Francisco Dist. Atty. Chesa Boudin and Contra Costa County Dist. Atty. Diane Becton filed briefs in support of Gascón, worrying that a ruling like the one issued Monday would have a “chilling effect” on the authority of elected prosecutors to enact reforms.

The full opinion is available at this link, and the coming appeals should be interesting to watch.

Prior recent related posts:

February 10, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Evading the Eighth Amendment: Prison Conditions and the Courts"

The title of this post is the title of this book chapter authored by Sharon Dolovich now available va SSRN.  Here is its abstract:

The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly.  This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody.  It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values.  The effect was to leave the people in prison without judicial protection from needless pain and suffering.  And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern.

February 10, 2021 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 09, 2021

"U.S. Attorney Transition Begins" ... and ... "The Justice Department Is Way Too White"

The title of this post is drawn from two recent headlines.  The first part comes from this new Justice Department press release, which states the following:

Continuing the practice of new administrations, President Biden and the Department of Justice have begun the transition process for the U.S. Attorneys.

“We are committed to ensuring a seamless transition. Until U.S. Attorney nominees are confirmed, the interim and acting leaders in the U.S. Attorneys’ Offices will make sure that the department continues to accomplish its critical law enforcement mission, vigorously defend the rule of law and pursue the fair and impartial administration of justice for all,” said Acting Attorney General Wilkinson.

Earlier this year, nearly all presidential appointees from the previous administration offered their resignations, though U.S. Attorneys and U.S. Marshals were asked to temporarily remain in place. Prior to the beginning of this U.S. Attorney transition process, approximately one-third of the U.S. Attorneys’ Offices were already led by acting or interim leadership.

President Biden will make announcements regarding his nominations to the Senate of new U.S. Attorneys as that information becomes available.

The second part is the title of this new and notable New Republic commentary authored by Ankush Khardori, which includes these passages (with some links from original retained):

One outstanding question that is likely to figure prominently in how progressives evaluate Biden’s eventual nominees is whether, and to what extent, the administration will try to address the unfortunate lack of racial diversity within the department, particularly in those top prosecutor positions.  This is a long-standing problem that got strikingly worse under Donald Trump.  Biden’s nominations of Lisa Monaco, Vanita Gupta, and Kristen Clarke for senior positions in the department have been a positive sign — that trio not only brings variety across lines of race and gender, they also happen to be as well-qualified a group as any you could assemble — but it remains to be seen how much progress the administration will make beyond these first big moves.

The lack of racial diversity among federal prosecutors is a significant problem, one that’s reflected throughout every segment of the legal profession.  It has shown little sign of abating.  A recent study once again confirmed the truly dismal state of affairs in the private sector: About 92 percent of law firm partners are white, just 2 percent are Black, and pretty much no one in a position of power seems to care.  President Biden has the opportunity to reverse these trends, which would not just benefit the lawyers who are currently struggling to advance in their careers — it would significantly improve the world for the Justice Department’s legal clients: the American people....

Last year, BuzzFeed’s Zoe Tillman found that just seven of the 93 U.S. attorneys at the time were nonwhite.  These problems weren’t as pronounced in the top ranks during the Obama administration, but the broad lack of diversity nevertheless persisted at every level even then.  In 2015, for instance, Stanford Law School released a study that found that just 13 percent of all assistant U.S. attorneys were Black or Latino....  [T]here are significant public policy implications that flow from the imperative to improve diversity at the department, including among the U.S. attorneys throughout the country.  These are really federally appointed local prosecutors — among the most prominent and consequential political and legal figures in their communities.  It is vital to have people in these positions who represent the diversity of our country and their communities, and who can tailor and calibrate their local enforcement priorities accordingly....

Biden’s first big hires suggest that he understands that there is value to diversity in the Justice Department’s ranks, but this is not simply a matter of optics.  The stakes here — and the potential for significant forward progress in the federal law enforcement apparatus — are very real.  For an administration that seems to want to aggressively address the many serious problems left and exacerbated by the Trump administration, empowering a new group of U.S. attorneys who look like and can relate to the communities that they’ll be serving will not just mark a sharp start to a new era, it will provide the foundation for a more durable and just future. 

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

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

  1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
  2.  Require that short prison sentences be served in county jails. 
  3.  End mandatory minimum sentences for nonviolent offenses.
  4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
  5.  Provide guidance for judges considering sentence enhancements.
  6.  Limit gang enhancements to the most dangerous offenses.
  7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
  8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
  9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
  10.  Establish judicial process for “second look” resentencing.

February 9, 2021 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Coalition of civil rights groups calls on Prez Biden to commute all federal death sentences and halt capital activity

As reported in this AP piece, "civil rights and advocacy organizations are calling on the Biden administration to immediately halt federal executions after an unprecedented run of capital punishment under President Donald Trump and to commute the sentences of inmates on federal death row."  Here is more (with links from the original):

The organizations, including the American Civil Liberties Union, The Leadership Conference on Civil and Human Rights and 80 others, sent a letter to President Joe Biden on Tuesday morning, urging that he act immediately “on your promise of ensuring equality, equity, and justice in our criminal legal system.”

Biden has been systematically undoing many Trump administration policies on climate, immigration and ethics rules. Although he is against the death penalty and has said he will work to end its use, Biden has not commented on what he will do with Trump’s unprecedented push for the federal death penalty.  The Bureau of Prisons carried out more executions under Trump, 13, than any previous president....  The groups say Biden should step in immediately and take action, as his administration works to establish priorities, address systemic racism and overhaul parts of the criminal justice system.

In the letter, the civil rights groups said the use of the death penalty “continues to perpetuate patterns of racial and economic oppression endemic to the American criminal legal system.”...  “Any criminal legal system truly dedicated to the pursuit of justice should recognize the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” the letter said....

The groups told Biden he has the power to dismantle the death chamber building at the Federal Correctional Complex in Terre Haute, Indiana — the small building where the 13 executions were carried out in six months — in addition to rescinding the Justice Department’s execution protocols and a regulation that no longer required federal death sentences to be carried out by lethal injection and cleared the way to use other methods like firing squads and poison gas.

They also said Biden could prohibit prosecutors from seeking death sentences and commute the sentences of the several dozen inmates on federal death row.  Far-reaching steps by Biden, the letter said, would also preclude any future president from restarting federal executions.  Trump’s predecessor, Barack Obama, halted federal executions but never cleared death row or sought to strike the death penalty from U.S. statutes.  That left the door open for Trump to resume them.  “We … recognize that if there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” it said.

Cynthia Roseberry, the ACLU’s deputy director of policy for the justice division, said she knows that Biden has a lot on his plate and that he should be given some time to act on the death penalty.  But she said the groups wanted to assure Biden “that there is broad based support to be bold” on the issue and that some don’t require complicated policy initiatives or new legislation.  “These things,” Roseberry said, “can be accomplished with the stroke of the pen.”

The full ACLU press release about this letter is available at this link, and the full letter from the coaltion is available at this link.   

I noted here in response to last month's similar letter by 37 Democratic members of Congress that the call for commuting all of federal death row came with a request to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  This new call here to "immediately commuting the sentences of all individuals under federal sentence of death" does not alternative sentencing with any specificity, but it obviously avoids advocating that Prez Biden converting death sentences into life without parole sentences.  This is yet another reminder that modern adocacy against LWOP sentences, which often calls LWOP just a death sentence by another name, serves to complicate a bit advocacy against capital punishment.

February 9, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, February 08, 2021

CCRC releases a "Reintegration Agenda for the 117th Congress"

The Collateral Consequences Resource Center has this notable new report titled "A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment." Here is its 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 is 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 of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial 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 unless a person is serving a felony sentence in a correctional institution.

February 8, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Who Punishes More? Partisanship, Punitive Policies, and the Puzzle of Democratic Governors"

The title of this post is the title of this notable new research published in Political Research Quarterly authored by Anna Gunderson. Here is its abstract:

The growth of the carceral state over the last few decades has been remarkable, with millions of Americans in prison, jail, on parole or probation.  Political science explanations of this phenomenon identify partisanship as a key explanatory variable in the adoption of punitive policies; by this theory, Republicans are the driving force behind growing incarceration.  This article argues this explanation is incomplete and instead emphasizes the bipartisan coalition that constructed the carceral state.  I argue Democratic governors are incentivized to pursue more punitive policies to compete with Republicans when those Democrats are electorally vulnerable.  I test this proposition using a series of regression discontinuity designs and find causal evidence for Democrats’ complicity in the expansion of the carceral state. Democratic governors who barely win their elections outspend and outincarcerate their Republican counterparts. This article highlights Democrats’ role as key architects in the creation of vast criminal justice institutions in the states when those Democrats are electorally vulnerable.

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

US House subcommittee to hold hearing on means to "Prevent Abuse of the Clemency Power"

The planned start of former Prez Trump's second impeachment trial in the US Senate is sure to be getting all the attention on Capitol Hill tomorrow.  But this webpage notes that there will be an interesting hearing for clemency fans taking place the morning of February 9, 2021 in the the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the U.S. House of Representatives' Judiciary Committee. The hearing it titled "Constitutional Means to Prevent Abuse of the Clemency Power," and this webpage lists these scheduled witnesses:

Ms. Caroline Fredrickson, Distinguished Visitor from Practice, Georgetown University Law Center

Ms. Karen Hobert Flynn, President, Common Cause

Mr. Josh Blackman, Professor of Law, South Texas College of Law Houston

Mr. Timothy Naftali, Clinical Associate Professor of Public Service, New York University

February 8, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Restoring the Historical Rule of Lenity as a Canon"

The title of this post is the title of this new article recently posted to SSRN and authored by Shon Hopwood. Here is its abstract:

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation.  Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant.  But the rule is not always reliably used, and questions remain about its application.  In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule.  The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes.  As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today.

Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts.  If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration.

February 8, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, February 07, 2021

Reviewing notable criminal justice reform developments in (red) Ohio

I have long talked up criminal justice developments in Ohio because the state has long been a considered a bellwether for national developments.  But thanks to gerrymandering of state legislative district and other recent developments, Ohio is perhaps now more properly viewed as a red state.  Stiil, the political reality that Ohio's General Assembly is now GOP-heavy arguably make recent progessive criminal justice reforms in the Buckeye state even more noteworthy.  This new local article, headlined "Ohio makes big leaps forward on criminal justice changes," effectively reports on recent significant legislative action in this area, and here are excerpts:

Advocates for criminal justice reforms scored multiple wins in the closing weeks of 2020 that they say will give thousands of Ohioans a second chance.  Gov. Mike DeWine signed half a dozen bills into laws that will take effect later this year. The potential impacts are sweeping.

Incarcerated pregnant women will no longer be shackled to hospital beds as they deliver their babies.  Poor people will be able to perform community service as a way to get their driver’s licenses back instead of paying huge fees.  Ohioans who made mistakes will have an easier time getting professional licenses to advance their careers.  People suffering from serious mental illnesses at the time of the crime will not be executed. Teens who commit terrible crimes will serve their time but will still have the hope of making parole someday. 

And House Bill 1 will allow Ohioans in the throes of addiction to get drug treatment instead of a criminal record.  DeWine called House Bill 1 the most significant among the recent criminal justice reforms.  “There is a broad consensus in this country that people who commit crimes — non-violent offenses — because of the fact that they’re an addict, we all want to see them succeed.  We want them to get clean, stay clean and be good members of society,” said DeWine, a former Greene County prosecutor and state attorney general.  “There is a broad consensus that if they can get clean and on a pathway, we don’t want to tag them with a felony conviction. So this makes sense.”...

Support for HB1 came from the right and left — Ohio Supreme Court Chief Justice Maureen O’Connor, ACLU of Ohio, the conservative Buckeye Institute, public defenders and prosecutors.  Other bills signed into law by DeWine will reduce the “collateral sanctions” — additional punishments that were popular with tough-on-crime lawmakers over the past several decades.  Such sanctions made it more difficult to get professional licensing, housing, student financial aid, driver’s licenses and more.  “Again, we have a broad consensus that we shouldn’t be having those.  Once a person has served their time or served their probation, probably they should be able to move on with their lives,” DeWine said....

Additional reform efforts in 2021 will likely focus on Ohio’s cash bail system, the death penalty, knocking down the number of collateral sanctions people face when they’re convicted, holding the Ohio Parole Board accountable and pushing for criminal drug sentencing changes, said [Kevin] Werner of the Ohio Justice and Policy Center.

Also, while several criminal justice bills made it across the finish line, a comprehensive package of changes in Senate Bill 3 failed to win final approval.  SB3 called for reducing certain felony drug offenses to misdemeanors.  Shakyra Diaz, state director of the Alliance for Safety and Justice, which lobbied for SB3, said Ohio families still need solutions to the addiction crisis and the alliance will continue to work with lawmakers.  “Giving felony convictions to Ohioans with addictions only makes the problem worse, and inaction is not an option as more families lose loved ones to addiction and overdoses because they needlessly cycle through the criminal justice system without getting treatment,” Diaz said.

February 7, 2021 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Can Prosecutors Help To End Mass Incarceration?"

The title of this post is the title of this article/book review authored Rachel Barkow now available via SSRN.  Here is its abstract:

Emily Bazelon argues in her excellent book, Charged, that “[t]he movement to elect a new kind of prosecutor is the most promising means of reform . . . on the political landscape.”  While I share Bazelon’s enthusiasm for prosecutors committed to using empirical evidence to guide their policymaking, instead of reflexively supporting the most punitive policies because those measures traditionally played well with voters, I am less optimistic this new breed of so-called progressive prosecutors will make a significant dent in mass incarceration.  In this review, I explain why. 

Bazelon is right that prosecutors have enormous discretion to decide how criminal law will be applied, but the deference they have received in the past corresponded to their decisions to use that discretion to seek severe punishments.  In this review, I document the resistance to prosecutors seeking to decarcerate.  The forces pushing back come from outside and inside the office.  We have seen opposition efforts from police departments, judges, other prosecutors, elected officials, the media, and line prosecutors within these offices. For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors.  They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants. This review provides a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this can serve as a checklist to evaluate prosecutors who claim to be progressive.  If they are not putting their full support behind these institutional changes, one should question just how progressive they are.

But even if prosecutors pursue all these changes, we should recognize that they cannot dismantle mass incarceration their own.  Real change is going to require shifts in police departments, the judiciary, the legislature, and governor’s offices.  Most fundamentally, transforming punishment in America will require the public to change its understanding about what policies are most effective for crime control.  Prosecutors have long lobbied for the get-tough approach as the way to address crime, so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

February 7, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Friday, February 05, 2021

Virginia, the state "that since Colonial times has executed more people than any other," is on verge of abolishing the death penalty

As reported in this local article, headlined "House of Delegates backs abolishing death penalty, signaling end of capital punishment," the Commonwealth of Virginia is on the cusp of historic criminal justice reform.  Here are the details: 

In a landmark vote Friday, the Virginia House of Delegates passed a bill to abolish the death penalty in the state that since Colonial times has executed more people than any other.  With the Senate approving similar legislation Wednesday and Gov. Ralph Northam backing both measures, the action all but ends the death penalty in Virginia, which will now join 22 other states without a capital punishment law on the books.

"In the 20th century, few would have thought this was likely to happen at all, much less that Virginia would be the first in the South to eliminate capital punishment," said Larry Sabato, a political analyst at the University of Virginia. "This is a watershed moment. It shows dramatically how different the new Virginia is from the old," he said.

The House passage, 57-41, was largely along party lines, with three Republicans — Dels. Carrie Coyner, R-Chesterfield, Roxann Robinson, R-Chesterfield and Jeff Campbell, R-Smyth — voting with the Democrats who hold the majority in the House.  The votes followed passionate debate in each chamber this week over the government's ultimate sanction.

Since 1608, Virginia has executed almost 1,400 people — 113 of them since the U.S. Supreme Court allowed capital punishment to resume in 1976, the second-highest toll in the U.S. in modern times.

Speaking Thursday on behalf of the bill he sponsored, Del. Mike Mullin, D-Newport News, a prosecutor in Hampton, said, "There are many arguments for why we should abolish the death penalty. These arguments touch on everything from the moral implications of the death penalty, to the racial bias in how it is applied, to its ineffectiveness, to the extraordinary cost."

"But perhaps the strongest argument for abolishing the death penalty is that a justice system without the death penalty allows us the possibility of being wrong," he said. He cited the case of Earl Washington Jr., Virginia's only death row exoneree among 174 across the U.S.  Washington came within days of execution in 1985 for a rape and murder that DNA later proved was committed by another man. "How many people are we willing to sacrifice to vengeance," Mullin asked.

Shortly before the House vote Friday, Del. Jay Jones, D-Norfolk, who is vying for the Democratic nod to run for attorney general, urged passage, saying the United States is the only Western country that still has the death penalty. "The death penalty is the direct descendant of lynching.  It is state-sponsored racism and we have an opportunity here to end this today," he said....

Supporters of the death penalty did not have the backing of the Virginia Association of Commonwealth's Attorneys this year as the organization decided to let each member argue their own cases.  A dozen top prosecutors in the state favored abolition.

Michael Stone, executive director of Virginians For Alternatives to the Death Penalty, said, Friday's vote in the House, "is a repudiation of the long and violent policy of 1,390 executions carried out by the Commonwealth since 1608.  We look forward to Governor Northam signing this bill into law." Northam, following the Senate passage Wednesday, said, "The practice is fundamentally inequitable.  It is inhumane.  It is ineffective. And we know that in some cases, people on death row have been found innocent."...

There have been no now new death sentences imposed in the state since 2011 and no executions since 2017.  Under the legislation approved this week, the two men remaining on Virginia's death row — both convicted in Norfolk — will have their death sentences changed to life without parole....

If made law, the legislation would mean that all the current 15 types of capital murder — such as murder in the commission of a rape or robbery or the slaying of a law enforcement officer — would become aggravated murder punishable by life in prison without parole. However, as many critics point out, when sentencing, a judge — except in the case of the murder of a police officer — could suspend part or all of such a sentence.  That was a sticking point for some Republicans, particularly Sen. Bill Stanley, R-Franklin, who opposes the death penalty but said he could not vote for the legislation if it meant such a killer might someday be free.

WOW!

February 5, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Narrating Context and Rehabilitating Rehabilitation: Federal Sentencing Work in Yale Law School’s Challenging Mass Incarceration Clinic"

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

The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016.  Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges’ and prosecutors’ assumptions about criminal sentencing.

In this article, I set forth CMIC’s theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice.  I then describe CMIC’s case outcomes, including variances which have reduced each of our clients’ prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors’ recommended sentences.  CMIC’s work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases.

Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability.  I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model.

February 5, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 04, 2021

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Wednesday, February 03, 2021

Disconcerting new data on pandemic parole practices from the Prison Policy Initiative

The Prison Policy Initiative has this new briefing authored by Tiana Herring that provides some notable data on parole realities in 2022. Authored by Tiana Herring, the full title of the piece highlights its themes: "Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic: Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic."  Here is much of the exposition (click through to see data):

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic.  Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes.  In over half of the states we studied —Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina — between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times.  Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations.  And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.  But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release.  Parole boards often choose to deny the majority of those who appear before them.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole.  This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months.  Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states — Hawaii, Iowa, New Jersey, and South Dakota — actually approved more people for parole in 2020 than in 2019.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 02, 2021

Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

It is now nearly two full week since former Prez Trump issued his large batch of clemencies in his final hours in office.  As I mentioned in this post last week, Trump's entire clemency record is full of fascinating and frustrating stories with respect to individual cases and the body of clemency work.  I did a round-up of recent pieces assessing Trump's clemency activities law week, but another week of press coverage reveals another set of interesting stories about both clemencies granted and not granted:

From CBS News, "Man serving life sentence for non-violent crime reunites with family after Trump pardon: 'A piece of me is back'"

From CNN, "This former prisoner had an unlikely supporter: the judge who sentenced him"

From Forbes, "The Inside Story Of A Trump Pardon Gone Wrong"

From Newsday, "How the plan to grant clemency to Sheldon Silver was scuttled"

From Politico, "The Real Scandal Is the Pardon Trump Didn’t Give: Rufus Rochell checked all the right boxes for clemency: an exemplary record in prison, advocacy out of it, and a friendship with a famous Trump booster. So why didn’t he get it?"

From SF Weekly, "Meet the Cannabis Offenders Pardoned by Trump"

I hope it will not be too long before we have some clemency action by Prez Biden to talk about, but I am not really all that optimistic on that front. 

February 2, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 01, 2021

Highlighting bipartisan accomplishments and opportunities in the arena of criminal justice reform

Marc Levin has this notable new Hill commentary headlined "Build a bridge, not a wall, between administrations on justice reform," which emphasizes ground for bipartisan criminal justice reform work past and present.  I recommend the full piece and here are excerpts:

Few would dispute that the First Step Act was the crown jewel of bipartisan achievements over the last four years.  It contributed to the shrinking of the federal prison population through provisions such as lowering mandatory minimum penalties for drug offenses and making retroactive a reduction in the crack and powder sentencing law disparity.  Additionally, the CARES Act earlier this year expanded medical parole eligibility in the face of the wrenching impact of COVID-19 on incarcerated people and staff.

Other bipartisan accomplishments flew under the radar.  In 2018, the Juvenile Justice and Delinquency Prevention Act was reauthorized with provisions added to phase out the shackling of pregnant girls, require the separation of jailed youth from incarcerated adults, and ensure that racial disparities are tracked and addressed. In 2019, legislation was passed to stop abusive IRS prosecutions for “structuring,” which put some law-abiding small business owners through a dragnet simply because they made bank deposits of $10,000 or more.

Just two days before leaving office, Trump took action on another justice-related topic, overcriminalization.  In an effort to rein in the proliferation of obscure criminal penalties that can unwittingly trip up individuals and businesses, Trump issued an executive order mandating that when federal agencies create criminal offenses through regulations, they specify the culpable mental state required for conviction.

While the Biden administration should seek continuity in these areas, there is no shortage of work to do on other aspects of criminal justice reform.  In June 2020, the Council on Criminal Justice convened a bipartisan Task Force on Federal Priorities, chaired by former Georgia Gov. Nathan Deal, that issued numerous recommendations, including the reinstatement of Pell grants for people in prison that was adopted in December.  Among the most important items deserving action by the White House and Congress are Task Force recommendations to abolish federal drug mandatory minimums, expand record sealing, and allow courts to take a second look at certain sentences after individuals have spent many years behind bars.

Fortunately, many of these priorities are already teed up for bipartisan action in Congress.  For example, acquitted conduct legislation backed by lawmakers ranging from Sen. Richard Durbin (D-Ill.) to Sen. Mike Lee (R- Utah) would prohibit prosecutors from contaminating the sentencing phase of a trial with references to conduct that the jury determined the defendant was not guilty of.

Another priority is marijuana reform, which — at a minimum — should include waiving federal laws that interfere with state legalization of medicinal or recreational marijuana. All but six states have now legalized marijuana in some form, and yet federal law inexplicably continues to classify it as a Schedule 1 drug, along with heroin, LSD, and crack cocaine.  This continued federal war on cannabis drives underground what should be legitimate activity going through reputable financial institutions.  The new administration and Congress must not only start a new chapter on marijuana policy, but also remedy the injustices and inequities of the past by authorizing actions such as automatic record clearing of marijuana convictions....

Criminal justice policy is too important to leave to any one political party.

February 1, 2021 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Sunday, January 31, 2021

"Undemocratic Crimes"

The title of this post is the title of this new article authored by Paul Robinson and Jonathan Wilt. Here is its abstract:

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment.  This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice.  Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common rules in modern criminal law seriously conflict with community justice judgments, including three strikes and other habitual offender statutes, abolition or narrowing of the insanity defense, adult prosecution of juveniles, felony murder, strict liability offenses, and a variety of other common doctrines.

In short, democratically elected legislatures have regularly chosen to adopt criminal law rules that conflict with the deep and abiding intuitions of their constituents.  We endeavor to explain how this incongruent situation has arisen.  Using the legislative and political histories of the doctrines noted above, we document four common causes: legislative mistake about the community’s justice judgments, interest group pressure, prioritizing coercive crime-control mechanisms of general deterrence and incapacitation of the dangerous over doing justice, usually at the urging of academics or other supposed experts, and legislative preference for delegating some criminalization decisions to other system actors, such as prosecutors and judges.

Analysis of these reasons and their dynamics suggests specific reforms, including a legislative commitment to reliably determine community justice judgments before enactment and to publicly explain the reasons for enacting any criminal law rule that conflicts.  Creation of a standing criminal law reform commission would be useful to oversee the social science research and to help hold the legislature to these public promises.

January 31, 2021 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this effective ten-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2021."  I count well over two dozen notable suggested reforms on the list, each of which comes with helpful links and additional information.  Check out the whole document, and here are two of the many sentencing items to whet appetites:

Make it easier to change excessive prison sentences

Problem: Nationally, one of every six people in state prisons have been incarcerated for a decade or more. While many states have taken laudable steps to reduce the number of people serving time for low-level offenses, little has been done to bring relief to people needlessly serving decades in prison.

Solutions: State legislative strategies include: enacting presumptive parole, second-look sentencing, and other common-sense reforms, such as expanding “good time” credit policies. All of these changes should be made retroactive, and include people convicted of both violent and nonviolent offenses.

Example bill: The Second Look Act of 2019 https://www.congress.gov/bill/116th-congress/senate-bill/2146, which proposed to allow people to petition a federal court for a sentence reduction afer serving at least 10 years.

More information: See our reports Eight Keys to Mercy: How to shorten excessive prison sentences https://www.prisonpolicy.org/reports/longsentences.html and Reforms Without Results: Why states should stop excluding violent offenses from criminal justice reforms https://www.prisonpolicy.org/reports/violence.html.

Repeal or reform mandatory minimum sentences and automatic “sentencing enhancements”

Problem: Mandatory minimum sentences and similar automatic sentencing structures like “sentencing enhancements” have fueled the country’s skyrocketing incarceration rates, harming individuals and undermining our communities and national well-being, all without significant increases to public safety.

Solutions: The best course is to repeal these laws so that judges can craft sentences to fit the unique circumstances of each crime and individual, but where that option is not  possible, states should adopt sentencing “safety valve” laws, which give judges the ability to deviate from the mandatory minimum under specified circumstances.

Model and example bills: Several examples of state and federal statutes are included in Families Against Mandatory Minimums’ (FAMM) Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money https://famm.org/wp-content/uploads/State-Safety-Valve-Report-Turning-Off-the-Spigot.pdf; see also American Legislative Exchange Council’s (ALEC) Justice Safety Valve Act https://www.alec.org/model-policy/justicesafety-valve-act/

More information: See FAMM’s Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money and our Geographic Sentencing Enhancement Zones page https://www.prisonpolicy.org/zones.html.

January 31, 2021 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Saturday, January 30, 2021

So what's a reasonable expectation for how many of Prez Biden's judicial nominees will be criminal defense or civil rights lawyers?

There is a long-standing concern, especially among criminal justice reform advocates and civil rights groups, that the federal judiciary is badly skewed because of the disproportionate number of judges who are former prosecutors or former government lawyers or have only private practice experience.  As noted in this post, Clark Neily at Cato has done great work on this front with this report from late 2019 with these core findings:

[I]t is generally perceived that a disproportionate number of federal judges served as government lawyers before donning a robe.  Until now, however, no one had ever examined the professional background of every sitting federal judge to see whether that perception is true.  So Cato’s Project on Criminal Justice devised a methodology for coding judges’ prior professional experiences and went through the federal judiciary judge by judge to test that perception.

What we found confirms the conventional wisdom: Former government lawyers — and more specifically, lawyers whose formative professional experiences include serving as courtroom advocates for government — are vastly overrepresented on the federal bench.  Looking only at former prosecutors versus former criminal defense attorneys (including public defenders), the ratio is four to one.  Expanding the parameters to include judges who previously served as courtroom advocates for government in civil cases as well as criminal cases, and comparing that to judges who served as advocates for individuals against government in civil or criminal cases, the ratio is seven to one.

Taking a slightly different approach to these issues, the Center for American Progress produced this August 202 study with an even more stark accounting of professional imbalance in the federal circuit courts:

[P]rofessional diversity on the federal appellate courts is severely lacking, with significant implications for the type of legal expertise underlying the opinions these judges issue. Only about 1 percent of sitting circuit court judges have spent the majority of their careers as public defenders or within a legal aid setting.  In contrast, the federal appellate bench is swamped with those who spent the majority of their careers in private practice or as federal prosecutors — making up more than 70 percent of all sitting appellate judges.  No sitting judge spent the majority of their career with a nonprofit civil rights organization.

Notably, though I can think of a few prominent former criminal defense attorneys that Prez Barack Obama placed on the federal bench, this recent article highlights that he did not significantly improve these historic imbalances: "Around 14% of President Obama’s nominees for federal district and appeals court judges had experience working in public defense. Meanwhile, 41% of his nominees had experience working as prosecutors."

Encouragingly, there is now considerable chatter and seemingly considerable effort focused on Prez Biden making sure a much greater number of his judicial nominees are criminal defense or civil rights lawyers.  Here is just some of the recent press discussions on this front:

From The Hill, "Biden team asks Senate Democrats to recommend public defenders, civil rights lawyers for federal bench"

From NBC News, "After Trump, Democrats set out on a mission to 'repair the courts'"

From Reason, "Biden's Judicial Picks Should Include Lawyers Who Battled the Government in Court"

From the San Diego Union-Tribune, "Judges with criminal defense or civil rights backgrounds are rare in federal court. We need more."

Given the existing imbalances, I do not think it would be problematic or misguided for Prez Biden to aspire to have all of his judicial nominees, at least during his first year in office, be persons with criminal defense or civil rights backgrounds.  Certainly, I hope his very first judicial nominee should have this professional history (and elevating U.S. District Judge Ketanji Brown Jackson to fill Merrick Garland's seat on the DC Circuit, as has been discussion, would be a great way to start).  And I am certain there is an existing pool of many thousands of qualified potential nominees with significant criminal defense and/or civil rights experience from which to pick for the roughly 50-100 federal judicial nominees he may be able to make in the coming year.

But I am prepared to admit that it is likely unrealistic for anyone to expect all of Prez Biden's 2021 judicial nominees to be criminal defense or civil rights lawyers.  But what is realistic?  Would it be crazy to hope and expect that there are four judicial nominees with this kind of professional history for every one without such a history?  At least two?  I suspect (and fear) that the Biden team will garner considerable praise if even 50% of its judicial nominees have some criminal defense or civil rights background, but I will likely be disappointed if it is not even higher.

January 30, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (3)