Friday, May 29, 2020

"Not Letting Felons Vote Damages Democracy for All Citizens"

The title of this post is the headline of this new Verdict commentary authored by Austin Sarat.  Here are excerpts:

On Sunday, a Florida federal district court struck down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote.  The court found that such a requirement would amount to a poll tax and discriminate against those who cannot afford to pay.  That decision is the latest salvo in two battles: Florida’s recent effort to restore voting rights to felons, and America’s long history of using disenfranchisement as a collateral consequence of criminal punishment.

The latter has a shameful history.  This nation’s longstanding hostility toward criminals and convicts bubbles over in an 1871 Virginia court decision that described prisoners as “slaves of the state.”  As a consequence of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”

In 2018 the Florida electorate voted to repudiate that history when 65% of the voters supported a proposal to amend the state constitution so that convicted felons who complete “all terms of sentence” could vote. Several months later, the heavily Republican state legislature tried to limit the impact of that amendment. It passed a bill saying that “all terms of sentence” included the discharge of financial obligations such as fines, fees and restitution.  Sunday’s court decision enjoined the application of that law....

Because of the current racial composition of America’s prisons and jails, felony disenfranchisement has had a much greater impact on the democratic participation of citizens of color than that of white citizens.  Yet, in 2002, a different federal court in Florida dismissed a lawsuit claiming that felony disenfranchisement was racially discriminatory....

Florida’s long history of felony disenfranchisement is hardly unique.  The practice of removing voting rights from people convicted of crimes can be traced back to the colonial practice of treating criminals as civilly dead.  And soon after the American Revolution, felony disenfranchisement was written into the law of many of the newly formed states.

Debates about slavery and the aftermath of the Civil War gave added impetus to this practice.  States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights. In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of slaves and convicts as justification.

Today, according to a report by the Sentencing Project, nearly 40% of the 6.1 million people disenfranchised by a felony conviction are black....  Currently 48 states and the District of Columbia do not allow felons to vote while they are serving time in prison.  Thirty-one states prevent people on parole or probation from casting ballots.  Four states permanently bar ex-inmates from voting and do not allow restoration of that right, while eight others disenfranchise only people who have committed particularly egregious kinds of crimes.

Sunday’s court decision striking down new barriers erected to limit the number of Florida’s previously disenfranchised population from voting is admirable, but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship — the right to vote....  Moreover, if this nation wants prisoners, when they leave  confinement, to return to be productive, well-integrated members of society, it should make sure they have a stake in that society.  Voting gives them that stake.  Ending felony disenfranchisement also would help break the legacy of slavery which continues to haunt imprisonment in the U.S.

The entire country should follow the examples of Maine and Vermont, the only two states that allow people to vote from behind bars and after they are released.  They have done so for more than two hundred years. Canada, Denmark, Spain, and 13 other democracies also permit felons to exercise the franchise even when they are serving time.  They recognize that voting is a right of adult citizens, not a privilege accorded only to some.  Last year legislators in Massachusetts, Hawaii, New Mexico, and Virginia introduced bills to allow all prisoners to vote, a position endorsed by Senator Bernie Sanders during his presidential campaign.

Dissenting in the Richardson case, Justice Thurgood Marshall wisely noted that there is no reason to believe that “felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”  And, Justice Marshall was right to remind all of us that the right to vote “is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

May 29, 2020 in Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Wednesday, May 27, 2020

With his return to blogging, is Bill Otis no longer a potential nominee for the US Sentencing Commission?

Long-time readers should be familiar with the name Bill Otis, not only because he was for years a regular commentor on this blog, but also because he is a prominent former federal prosecutor who often prominently shared his (tough-on-crime) sentencing perspectives in many media.  We have not heard much from Bill in a few years; his recent quietness seemed a direct result of Bill being tapped to be one of Prez Trump's notable March 2018 nominations to the US Sentencing Commission. 

I surmise that when anyone is a Presidential nominee (or thought likely to be a nominee), it is considered good form for that nominee to stay relatively mum during the confirmation process.  And Bill Otis was not just any nominee: though usually only hard-core sentencing nerds pay much attention to USSC nominations, Prez Trump's entire slate of nominees, and especially the naming of Bill Otis, prompted considerable critical commentary from various sources (covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.  But, as noted in this post from January 2019, the folks at FAMM were so troubled by the notion of Bill Otis potentially being nominated again, they produced this press release and sent this long letter to Prez Trump "discouraging the re-nomination of William Otis to the U.S. Sentencing Commission." 

Because Bill Otis was remaining quiet through 2019 and early 2020 amidst all sorts of notable and high-profile federal sentencing stories (from Michael Cohen to Felicity Huffman to Paul Manifort to Roger Stone), I figured the folks at FAMM were right to think there remained a real possibility of Bill Otis being nominated again to the USSC.  But, to my surprise, yesterday Bill started blogging again at Crime & Consequences, and he now has posted these two lengthy new entries on the Flynn kerfuffle: "Five Bad Arguments for Gen. Flynn" and "The Winning Argument for Gen. Flynn."  I consider Bill a friend, and I have previously noted how Bill and I have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

Especially because the fate of the U.S. Sentencing Commission matters a lot more than the fate of one high-profile, white-collar defendant, I am struck more by the fact that Bill Otis is blogging again after a 27-month hiatus than about his latest posts.  And his blogging leads me to wonder, as my post title indicates, whether this tells us something important about potential future USSC nominations.  With the general election now just over five months away, perhaps everyone, including Bill, is now just assuming we will not get any new USSC nominations until 2021 and until after the 2020 election clarifies or recasts political thinking about federal sentencing law and policy.  But maybe there is even more to this story, and maybe even Bill will tell us in his blogging.  Stay tuned.

Prior related posts:

May 27, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (4)

Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

I noted in this post this last summer the notable new group working toward criminal justice reform called the Council on Criminal Justice (CCJ).  I flagged here the CCJ's great set of papers and resources taking a close look at the 1994 Crime Bill (which I had a chance to contribute to as noted here); I also flagged here from December a big CCJ report on "Trends in Correctional Control by Race and Sex."  Today, I am excited to see and report on the CCJ's latest (and arguably most important) work, this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."  This press release provides a useful summary of the report and its major recommendations:

Well before COVID-19 surfaced, the Council on Criminal Justice (CCJ) established an independent task force to chart a course for federal action on criminal justice reform.  The pandemic has underscored the urgency of that effort, and today the Task Force on Federal Priorities released a report detailing 15 achievable, evidence-based proposals for change.  If fully implemented, key recommendations would:

  • Eliminate mandatory minimum sentences for federal drug crimes, reducing the prison population
  • Establish a “second look” provision allowing people serving longer sentences -– many of them elderly and infirm –- to ask courts for a sentence reduction
  • Help formerly incarcerated people succeed by sealing certain criminal records from public view
  • Create independent oversight of the federal prison system to improve conditions for incarcerated people and staff, strengthen reentry planning and other services, and hold employees accountable for misconduct
  • Resolve the federal-state conflict over recreational and medical cannabis by providing federal waivers to states that have legalized it
  • Dedicate millions of grant dollars to reducing victimization and trauma in cities most affected by violence...

The 14-member Task Force was established in June of 2019 to build on federal reforms adopted under the FIRST STEP Act, which passed with strong bipartisan support at the end of 2018.  While crime and incarceration rates have dropped, there is broad agreement across the political spectrum that more must be done to make communities safe and guarantee justice — not just by states and localities, where most criminal justice happens, but also by the federal government, which runs the country’s largest correctional system and helps set the tone of the national conversation.

Through their vigorous deliberations, Task Force members zeroed in on reforms that not only target critical needs, but also are politically viable and hold the potential to make the greatest improvements in safety and the administration of justice. Reflecting the commitment of Task Force members to bipartisan, data-driven solutions, all 15 proposals are accompanied by a policy rationale, detailed implementation steps, and a summary of the research and evidence that support them.

Task Force members represent a broad cross-section of stakeholders: former federal prosecutors and defenders; a former mayor and a veteran police leader; experts in prisoner reentry, substance use, and victim rights; and advocates and formerly incarcerated people. Task Forces are strictly independent of CCJ and solely responsible for the content of their reports.  Members are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation.

Regular readers will not be surprised to hear that I am a big fan of a lot of these recommendations, and I actually like this full list of all 15 recommendations even more than those summarized in the press release. In a few subsequent posts, I hope to give particular attention and scrutiny to the various key sentencing recommendations.  For now I will be content to say, good work CCJ!

May 27, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offense Characteristics, Recommended reading, Who Sentences | Permalink | Comments (2)

Tuesday, May 26, 2020

"Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out"

The title of this post is the headline of this significant new ProPublica piece discussing yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.  I recommend the piece in full, and here are excerpts:

Even as the Justice Department announced that federal prisons would release vulnerable, nonviolent inmates to home confinement to avoid the spread of COVID-19, the agency was quietly adopting a policy that makes it harder for inmates to qualify for release, not easier. The result has been that more than 98% of inmates remain in federal custody, while a handful of celebrity inmates, like former Trump campaign chair Paul Manafort, have been released to home detention.

In two memos, one in late March and a second in early April, Attorney General William Barr directed the Federal Bureau of Prisons, which is part of the Justice Department, to begin identifying inmates who could safely be released to home confinement — essentially house arrest. They instructed prison officials to grant “priority treatment” to inmates deemed to present minimal risk to the public.

Separately, however, the Bureau of Prisons had drafted a 20-page policy document this year that altered a standard adopted only a year ago and made it harder for an inmate to qualify as minimum risk.

ProPublica obtained a copy of the document, which does not appear to have been finalized, and its existence surprised and baffled lawyers, prison reform advocates and inmates interviewed for this article....

The Bureau of Prisons’ reliance on the unpublished policy document has exacerbated widespread puzzlement about how the agency is implementing Barr’s home-confinement order. “There’s been nothing but confusion,” David Patton, the chief federal public defender for the New York City area, said. “We’ve received a steady stream of questions from clients about their scores, and we have no answers, because BOP doesn’t give us any.”

Fewer prisoners have been released than was expected when the attorney general made his announcement, lawyers say. About 3,050 inmates have been moved to home confinement as of May 21, Bureau of Prisons records show. That’s around 1.8% of the people under the bureau’s supervision. That figure is significantly smaller than the roughly 20% of inmates who fall into the minimum risk category (though it’s not automatic that all of them would qualify for release) under the 2019 rules.

The slow pace of prisoner releases has begun to attract attention. On May 19, a federal judge accused officials at the Elkton Federal Correctional Institution in Ohio — the site of a deadly coronavirus outbreak cited by Barr in his order — of moving too slowly to release inmates and “thumbing their noses” at Barr’s directive. He instructed them to expand the class of inmates eligible for home confinement by including inmates not only with minimum-risk scores, but also those said to have a low risk. The Justice Department has asked the Supreme Court to halt the order.

At the urging of Sens. Dick Durbin, D-Illinois, and Chuck Grassley, R-Iowa, who co-authored the First Step Act, the Justice Department’s inspector general has agreed to examine the scope of Barr’s directive as well as the Bureau of Prisons’ compliance with it and the agency’s overall response to the pandemic.

May 26, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

SCOTUS, by 6-3 vote, refuses to stay original federal judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported here by Amy Howe at SCOTUSblog, this afternoon "the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal government that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19."  But, as she further explains:

The inmates’ victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district court’s most recent order, and it indicated that the government could return to the Supreme Court to 'seek a new stay if circumstances warrant'.” Moreover, three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the government’s request.

Today’s order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility.

The inmates returned to the district court this month to enforce the April 22 order. They stressed that although the BOP had identified 837 inmates as elderly or high-risk, none of them had been released or moved yet: five were waiting for home confinement, while six others had been designated as potentially qualifying for home confinement. On May 19, finding that the BOP had been “thumbing their nose at their authority to authorize home confinement,” the district court ordered the government to “make full use of the home confinement authority,” and to reconsider inmates’ eligibility without using certain criteria – such as the amount of time remaining on an inmate’s sentence – as a categorical bar. The district court also ordered the government to act quickly on applications for compassionate release, and to explain by May 26 why any prisoners who are not eligible for release could not be transferred to another facility “where social distancing is possible.”

The government came to the Supreme Court last Wednesday, asking the justices to put the district court’s April 22 order on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if needed, the Supreme Court. In a filing by U.S. Solicitor General Noel Francisco, the government argued that allowing an order that would require the release or transfer of over 800 prisoners could both jeopardize public safety and interfere in the management of federal prisons.

In their brief opposing the stay of the district court’s order, the inmates emphasized that as of May 19, there were 135 active COVID-19 cases among the inmates at the Elkton prison, plus eight active cases among staff members. The only way to lower the risk of infection for inmates and staff is to transfer inmates out of the facility, as the attorney general himself has recognized, they argued....

In the one-page order today, the court explained that the government was “seeking a stay only of the District Court’s April 22 preliminary injunction,” even though the district court had “issued a new order enforcing the preliminary injunction and imposing additional measures” on May 19. “Particularly” because the government had neither appealed the May 19 order nor asked the 6th Circuit to put it on hold, the court continued, the Supreme Court would not now block the April 22 injunction, but the government could return to seek a new stay “if circumstances warrant.”

The full SCOTUS order is available at this link.

Prior related posts:

May 26, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 23, 2020

A big list for a whole week's worth of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

I did not get a chance to do a mid-week review of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) because this past work week seemed extra busy — though these days that just means staring at different types of websites from different computers in my house.  In any event, I have been told that my prior lists of district court rulings grants of sentence reductions that I find on Westlaw continue to be useful, so I will continue the listing tradition previously found in recent posts (which are all linked below)

My last post seemed to cover most grants through May 15 though one from that date makes this latest list.  And because I have gone a whole week without a list, this one is extra long (with 27 cases!).  I have broken up the list in groups of five just for ease of review (and I have added a few silly pop-culture comments just to try to lighten things up a bit): 

 

United States v. Moore, No. 3:16-CR-00171-JO, 2020 WL 2572529 (D Ore. May 21, 2020)

United States v. Stephenson, No. 3:05-CR-00511, 2020 WL 2566760 (SD Iowa May 21, 2020)

United States v. Galloway, No. RDB-10-0775, 2020 WL 2571172 (ED Mich. May 21, 2020)

United States v. Parker, No. 2:98-cr-00749, 2020 WL 2572525 (CD Cal. May 21, 2020) (full name "Richard Wayne Parker" of interest to Spiderman and Batman?)

Loyd v. United States, No. 15-20394-1, 2020 WL 2572275 (ED Mich. May 21, 2020)

 

United States v. Rahim, No. 16-20433, 2020 WL 2604857 (ED Mich. May 21, 2020)

United States v. Readus, No. 16-20827-1, 2020 WL 2572280 (ED Mich. May 21, 2020)

United States v. Vence-Small, No. 3:18-cr-00031 (JAM), 2020 WL 2572742 (D Conn. May 21, 2020)

United States v. Pippin, No. CR16-0266, 2020 WL 2602140 (WD Wash. May 20, 2020) (no mention of what this Mr. Pippin thought of MJ Last Dance documentary)

United States v. Schneider, No. 14-cr-30036, 2020 WL 2556354 (CD Ill. May 20, 2020)

 

United States v. Doshi, No. 13-cr-20349, 2020 WL 2556794 (ED Mich. May 20, 2020)

United States v. White, No. 13-cr-20653-1, 2020 WL 2557077 (ED Mich. May 20, 2020)

United States v. Hill, No. 3:19-cr-00038 (JAM), 2020 WL 2542725 (D Conn. May 19, 2020) (not 2012 crack case that went to SCOTUS on FSA pipeline issue)

United States v. Dorsey, No.  CR16-0138-BLW-JCC, 2020 WL 2562878 (WD Wash. May 19, 2020) (also not 2012 crack case that went to SCOTUS on FSA pipeline issue)

United States v. Sarkisyan, No. 15-cr-00234-CRB-15, 2020 WL 2542032 (ND Cal. May 19, 2020)

 

United States v. Bright, No. 2:15CR00015-005, 2020 WL 2537508 (WD Va. May 19, 2020)

United States v. El-Hanafi, No. 10-CR-162 (KMW), 2020 WL 2538384 (SDNY May 19, 2020)

United States v. Copeland, No. 02-cr-01120 (FB), 2020 WL 2537250 (EDNY May 19, 2020) (cue COVID-era version of Police classic "Don't Stand So Close to Me")

United States v. Bischoff, No. 17-cr-196-JD, 2020 WL 2561423 (D N.H. May 18, 2020)

United States v. Anderson, No. 15-cr-30015, 2020 WL 2521513 (CD Ill. May 18, 2020)

 

United States v. Rountree, No. 1:12-CR-0308 (LEK), 2020 WL 2610923 (NDNY May 18, 2020)

United States v. Cotinola , No. 13-CR-03890-MV, 2020 WL 2526717 (D N.M. May 18, 2020) (meth case from Albuquerque for any Breaking Bad fans out there)

United States v. Bennett, No. 05 Cr. 1192-1 (NRB), 2020 WL 2539077 (SDNY May 18, 2020)

United States v. Agomuoh, No. 16-20196, 2020 WL 2526113 (ED Mich. May 18, 2020)

United States v. Schafer, No. 6:18-CR-06152 EAW, 2020 WL 2519726 (WDNY May 18, 2020)

 

United States v. Johnson, No. 15-cr-125 (KBJ), 2020 WL 2515856 (DDC May 16, 2020)

United States v. Arreola-Bretado, No. 3:19-cr-03410-BTM, 2020 WL 2535049 (SD Cal. May 15, 2020)

More than two dozen grants in a week is remarkable, and this is with still very few Friday rulings appearing on Westlaw as of midday Saturday.  Moreover, as I have mentioned in a number of prior posts, I am quite certain that my Westlaw listings do not represent all sentence reductions being granted by federal courts these days.  In fact, the Marshall Project article flagged here reported that the latest BOP "figures show that since early April, 268 prisoners nationwide received compassionate release."  That figure suggests an around 40 grants per weeks, whereas I have only been seeing and reporting in these listings only about half that many based on just Westlaw searches.

Prior recent related posts since lockdowns:

May 23, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record"

The title of this post is the title of this new paper recently posted to SSRN and authored by Mariah L. Daly, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic remains so timely and important.  Here is this paper's abstract:

Between 70 and 100 million adults have a criminal record of some kind that are revealed by criminal background checks.  One of the most severe and pervasive collateral consequences is difficulty securing gainful employment.  Ban-the-Box reform is crucial as a starting point for fair chance hiring, especially in the age of rapidly developing technology and the largely unfettered ability to get information.  The availability of criminal records has functioned less as a “public safety” precaution and more like a scarlet letter branded on the chest of millions Americans.  Demanding unnecessary disclose of criminal records before a conditional job offer hinders reintegration, increases recidivism, jeopardizes public safety, sabotages the economy, affronts human dignity, and causes devastating harm to society overall.

This paper argues that Ban-the-Box laws should be expanded and made uniform across jurisdictions to help prevent against unjust discrimination based on criminal record.  The vast differences in the levels of protection provided across Ban-the-Box jurisdictions and their shortcomings are analyzed and model Ban-the-Box legislation that incorporates concepts from the most protective existing laws is proposed.

May 23, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

YET ANOTHER REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

May 23, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 22, 2020

Sharp review of discouraging (and opaque) realities surrounding BOP release of some offenders to home confinement

As regular readers know, I have highlighted a few high-profile cases of federal prisoner being moved into home confinement by the Bureau of Prisons. But I cannot report on all the cases in which seemingly vulnerable inmates have been denied such a transfer, in part because there are far too many of those cases to cover in this space. This notable new Marshall Project piece helps document this reality, and the full headline provide a summery: "Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception. Just a small fraction of federal prisoners have been sent home. Many others lack legal help and connections to make their case." Here are excerpts from a lengthy article worth reading in full:

New data show that [Michael] Cohen, along with former Trump campaign manager Paul Manafort, released last week, are among the relatively few federal prisoners to win early release in the seven weeks since Attorney General William Barr cited the pandemic in ordering more federal prisoners to be let out. During that time, the number of people in home confinement increased by only 2,578, about 1.5 percent of the nearly 171,000 people in federal prisons and halfway houses when Barr issued his memo.

Cohen, President Donald Trump’s former personal lawyer, was sentenced to three years in prison, and Manafort to seven and a half years. Manafort has served less than a third of his sentence, so he, too, did not meet the federal criteria for early release, although he and Cohen do have health conditions that put them at added risk if they contract the virus....

Groups and relatives advocating for the release of prisoners at risk from the virus say they don’t begrudge well-connected people achieving that goal. The problem, they said, is that many other people who could meet Barr’s criteria languish in prison, without legal help, unable to understand the complex process or lacking connections to help them as the pandemic spreads. As of Wednesday, the official tally had 59 federal prisoners dying from COVID-19 and more than 4,600 testing positive, though health experts believe that’s almost certainly an undercount.

Melissa Ketter, a Minnesota woman whose daughter has served just over half of her sentence for a federal nonviolent drug crime, said she almost cried when she heard about Cohen’s release."I'm happy for him don’t get me wrong — but at the same time it was like, the rich white guy gets out early. I don’t wish for bad things to happen to these people, but it’s like can everybody be treated the same?" Ketter said.

The release process has been marked by foot-dragging and confusion, critics say, and a federal judge in a ruling Tuesday labeled the results “paltry.” The Bureau of Prisons won’t release data, won’t answer questions and keeps shifting policy on who qualifies for release, according to Georgetown Law professor Shon Hopwood, an expert on criminal justice reform. “The Bureau of Prisons is operating all behind closed doors, and that’s a big part of the problem,” Hopwood said....

The tally on people in home confinement and other federal prison data, obtained from the Bureau of Prisons and Congress, did not itemize how many people finished their sentences in the last seven weeks and are no longer included in the count.  It also did not specify how many prison-to-home transfers were approved by the bureau, as was the case with Manafort and Cohen, and how many were ordered by judges — many over objections from federal prosecutors, despite Barr’s order.

The total population in federal custody has gone down by about 10,800 people since April 2, the data show.  That includes emergency releases.  But it also includes people whose sentences were set to end during the past seven weeks, a figure the bureau on Thursday put at about 7,600.  The data did not specify how many new prisoners the bureau accepted.... 

Prisoners previously had to finish 90 percent of their sentence before they could be sent to home confinement. But the relief law Congress passed in March gave the attorney general broad powers to release prisoners during the pandemic. That process is internal, with the Bureau of Prisons able to select people for release and prisoners able to request release. But if bureau officials deny a request for home confinement, a prisoner can’t appeal.

By contrast, compassionate release allows prisoners to ask a federal judge for release if they show “extraordinary and compelling” reasons under the 2018 First Step Act. But many prisoners lack the education or skills to navigate the courts, and successful attempts usually require a lawyer.  The latest figures show that since early April, 268 prisoners nationwide received compassionate release. Since Trump signed the law in 2018, only 144 people had been granted such release before April 2, bureau data show.

The Department of Justice has been fighting many coronavirus-related requests for compassionate release in court, according to records and advocates monitoring the process. In a case decided this week, government lawyers called compassionate release a “Get Out of Jail Free Card” and referred to the pandemic as “a red herring.”  Instead, the Bureau of Prisons is starting to put people in home confinement, but slowly, according to Kevin Ring, president of FAMM, a national criminal justice advocacy group.

“I think the mass effort we’re putting into compassionate release is forcing them to designate more people for home confinement because I think they’d rather have these people in home confinement than completely released,” he said of federal officials. “It feels totally contradictory — you’re saying that ‘we’re doing everything we can to get people out of harm’s way,’ but you have this tool that you’re not using at all.”

May 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Full issue Columbia Human Rights Law Review devoted to capital sentencing practices and problems

A helpful reader alerted me to the latest issue of the Columbia Human Rights Law Review, which has these nine terrific-looking article about the ugly realities of capital sentencing past and present.  Here are the titles and links:

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment by Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017) by Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row by Hannah L. Gorman and Margot Ravenscroft

Valuing Black Lives: A Case for Ending the Death Penalty by Alexis Hoag

Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System by Mona Lynch

A Systematic Lottery: The Texas Death Penalty, 1976 to 2016 by Scott Phillips and Trent Steidley

Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion by Steven F. Shatz, Glenn L. Pierce, and Michael L. Radelet

Hidalgo v. Arizona and Non-Narrowing Challenges by Sam Kamin and Justin Marceau

Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing by Joseph J. Perkovich

May 22, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, May 21, 2020

"Evidence-Based Sentencing Reform: The Right Policy For Ohio"

The title of this post is the title of this short white paper authored by Andrew Geisler of The Buckeye Institute.  Here is how it starts and concludes:

Senate Bill 3 proposes commonsense and comprehensive reforms to Ohio drug sentencing law.  The bill seeks to hold those in the business of selling drugs accountable for their conduct, while ensuring those convicted of nonviolent drug possession get the treatment that they need.  To do that, the bill reclassifies some offenses and changes the drug quantities required to convict for others. The bill relies upon extensive data-driven research on the habits of drug users and dealers, and adopts drug-quantity thresholds largely consistent with the Ohio Criminal Justice Recodification Committee’s 2017 recommendations.  Modeled on the committee’s approach and recommendations, Senate Bill 3 takes significant strides toward making Ohio’s drug-sentencing laws more effective, flexible, and just....

Senate Bill 3 reforms Ohio’s drug sentencing laws without making it easier to traffic drugs.  The bill takes a commonsense, evidence-based approach to ensure that Ohio law adequately reflects the complex nature of addiction and drug trafficking by providing treatment for those possessing drugs and by continuing to hold drug traffickers accountable for their crimes.

Prior related recent post:

May 21, 2020 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Florida Supreme Court seemingly finds way avoid retroactive application of proper determination of who is exempt from execution under Atkins

As reported in this local article, headlined "Conservative Florida Supreme Court reverses itself again on death penalty legal issue," the top court in Florida authored this lengthy opinion which seems to permit the state to go forward with executing a person who would be exempt from execution under the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. Here are the press details:

Harry Franklin Phillips, a convict who shot a Miami parole officer to death in 1982, was hoping to get his death sentence reversed by convincing the courts that he is intellectually disabled. But the Florida Supreme Court, backtracking on its own case decided only years ago, on Thursday ruled that Phillips isn’t ineligible, the court’s latest reversal in how sentences in major cases are meted out.

The court ruled that an earlier decision allowed for the broadening of who can be deemed intellectually disabled — generally someone with an IQ of 70 or less — does not apply “retroactively” to older cases such as Phillips’.  The court ruled 4-1. The only dissenter was Justice Jorge Labarga....

The decision in Phillips’ case drew immediate criticism from opponents of the death penalty, who say the Florida Supreme Court has yet again thumbed its nose at the legal concept of stare decisis, or making decisions drawing from legal precedents. “I am personally shocked at the Court’s audacity and frankly its meanness,” said defense lawyer Stephen Harper, of Florida International University’s Florida Center for Capital Representation. “So many people who were already granted relief by the Florida Supreme Court are now being deprived of that relief by the Florida Supreme Court. “And stare decisis has been abandoned, and this will have a much more devastating effect on the public’s trust in the judicial system.”

Two years ago, the Florida Supreme Court backtracked on allowing certain juveniles — who had been eligible for parole because their murder convictions were from decades ago — to get new sentencing hearings. In January, the Florida Supreme Court reversed itself in ruling that unanimous jury verdicts were not needed to mete out the death penalty, a ruling excoriated by opponents of capital punishment. Florida law, however, still require juries to be unanimous in handing down a death sentence.

In Hall v. Florida, 572 U.S. 701 (2014), the US Supreme Court said that the "old" rule that Florida had used to determine who was ineligible to be executed under Atkins was "invalid under the Constitution’s Cruel and Unusual Punishments Clause."  But now the Florida Supreme Court is saying the state does not have to apply the constitutionally proper Atikns rule to "old" cases decided before Hall.  That strikes me as wrong because Atkins is fundamentally a substantive constitutional rule and its proper application should be fully retroactive because it involves "prohibiting a certain category of punishment for a class of defendants because of their status." Montgomery v. Louisiana, 136 S. Ct. 718, 728-29 (2016).  If the Constitution demands a certain approach to determining the applicable "class of defendants" (which is what Hall says), I do not think a state can dodge its retroactive application.

This matter seems sure to end up in federal courts, and it will be interesting to see how it plays out in the years ahead. 

May 21, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Feds asking SCOTUS to stay judicial order to transfer vulnerable prisoners "out of Elkton through any means"

Last month, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel two weeks ago refused to stay it.  And a few days ago, Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."

Though one might hope federal officials would now really focus on making better progress moving medically vulnerable prisoners from the Elkton prison, they are still trying to get the order stayed by now turning to the Supreme Court.  Amy Howe here at SCOTUSblog reports on the filing from last night, while also providing useful context for this notable battle: 

U.S. Solicitor General Noel Francisco ... new filing ... was on behalf of the federal Bureau of Prisons and federal prison officials, asking the justices to put a temporary hold on an order by a federal district court that would require the BOP to remove or transfer as many as 800 elderly or medically vulnerable inmates from a federal prison in Ohio where nine inmates have died from COVID-19.

The case was filed last month by inmates at FCI-Elkton, a low-security prison in Ohio that houses 2,500 inmates.  The inmates argued that, as a result of COVID-19, conditions at the prison violated their Eighth Amendment right to be free of cruel and unusual punishment.  In an order issued on April 22, the district court ordered the BOP to “determine the appropriate means of transferring” elderly and medically vulnerable inmates out of the prison — for example, by compassionate release or parole or by moving them to another federal facility.

Yesterday, after the district court was unsatisfied with the BOP’s efforts to comply with its original order, it ordered the BOP to revise the criteria for deciding whether an inmate is eligible for home confinement and to quickly reevaluate whether inmates might be eligible under the new criteria.  It also instructed the BOP to explain, within seven days, why ineligible inmates could not be moved to another prison “where social distancing is possible.”

The federal government asked the justices to put these rulings on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if necessary, the Supreme Court.  The government emphasized that, “even in normal times, an order requiring the transfer or release of ‘prisoners in large numbers * * * is a matter of undoubted, grave concern’” that runs the risk not only of “jeopardizing public safety” but also interfering in the management of prisons.  Moreover, the government added, the inmates are unlikely to prevail on the merits of their claim: Although “COVID-19 presents significant health risks,” the BOP has worked hard to reduce the risk of the virus in the prison, and the number of inmates in the hospital is on the decline.

The government’s request went to Justice Sonia Sotomayor, who fields emergency appeals from the 6th Circuit.  She ordered the inmates to respond to the government’s request by Friday, May 22, at 10 a.m. EDT.

I am inclined to predict that there is at least one Justice inclined to vote against a stay and at least one Justice inclined to vote for a stay (readers can probably guess which ones). It will be quite interesting to see how the Chief Justice steers the Court forward on this matter.

Prior related posts:

May 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

After extended resistance (and likely lots of legal fees), Lori Loughlin and her husband agree to plead guilty in college admission scandal with fixed short prison sentence

As reported in this CNN piece, headlined "Lori Loughlin and Mossimo Giannulli agree to plead guilty in college admissions scam," perhaps the highest profile remaining defendants in the college admissions scandal have now finally capitulated the prosecutorial pressure and decided to plead guilty. Here are the details:

Actress Lori Loughlin and her husband, fashion designer Mossimo Giannulli, have agreed to plead guilty to conspiracy charges in connection to their role in the college admissions scam, the US Attorney's Office in the District of Massachusetts said.

Loughlin, 55, and Giannulli, 56, had been accused of paying $500,000 to get their two daughters into the University of Southern California as fake crew team recruits. They had pleaded not guilty for more than a year and moved to dismiss charges as recently as two weeks ago.

As part of the plea agreement, Loughlin will be sentenced to two months in prison and Giannulli will be sentenced to five months in prison, subject to the court's approval, according to authorities. In addition, Loughlin faces a $150,000 fine, two years of supervised release and 100 hours of community service, and Giannulli faces a $250,000 fine, two years of supervised release and 250 hours of community service.

They are scheduled to plead guilty on Friday at 11:30 a.m., prosecutors said. Loughlin's publicist said she had no comment.

Loughlin will plead guilty to conspiracy to commit wire and mail fraud, and Giannulli will plead guilty to conspiracy to commit wire and mail fraud and honest services wire and mail fraud. The actress, best known for her role as Aunt Becky on the sitcom "Full House," and her husband had previously been charged with three counts of conspiracy.

"Under the plea agreements filed today, these defendants will serve prison terms reflecting their respective roles in a conspiracy to corrupt the college admissions process and which are consistent with prior sentences in this case," said US Attorney Andrew E. Lelling. "We will continue to pursue accountability for undermining the integrity of college admissions."

Loughlin and Giannulli were some of the most famous names wrapped up in the brazen scheme to cheat, bribe and lie in the hyper-competitive college admissions process.  They allegedly paid $500,000 as part of a scheme with Rick Singer, the scam's mastermind, and a USC athletics official to get their two daughters into the university as members of the crew team, even though they did not participate in crew....

If Loughlin and Giannulli had gone to trial and been convicted, they could have faced up to 20 years in prison for the conspiracy charge. "The stakes at trial were really high for these two," CNN legal analyst Elie Honig said. "Had they gone to trial and lost, they were looking at several years each.  So they really cut their losses here by cutting these pleas."

They are the 23rd and 24th parents to plead guilty in the case. Actress Felicity Huffman pleaded guilty to conspiracy last year for paying $15,000 to the scam's mastermind as part of a scheme to cheat on the SATs and boost her daughter's test scores, and she ultimately served 11 days in prison. 

The way that this plea is described in this press release form the US Attorney leads me to suspect that this is a Rule 11(c)(1)(C) plea in which the agreement states "a specific sentence ... is the appropriate disposition of the case [which] ... binds the court once the court accepts the plea agreement."  Sure enough, the Loughlin plea agreement makes clear that it is a (c)(1)(C) plea.  I do not recall many of the other defendants in the college admissions scandal who entered plea agreements having a fixed sentence built into the agreement, though that may well have been because, earlier, neither defendants nor prosecutors were inclined to lock in a particular sentence when it was unclear just what "sentencing price" judges were inclined to attached to this conduct.  Now that a few months seems to be the "norm," these latest defendants and the prosecutors now may have been content to lock in the sentence via the plea deal.

As for the "sentencing price" set here by the parties, Lori Loughlin seemingly got a pretty good deal given how much money was spent seeking to get two kids into college.  On the surface, her case seems somewhat similar to Toby MacFarlane's case; as noted here, he spent $450,000 to get his two kids into USC as fake athletic recruits and received a sentence of six month back in November.  But, were anyone concerned about a possible "celebrity discount," it is important to realize that the "Loughlin family" is getting a total of seven month and federal prosecutors may have had many reasons to believe that Loughlin's culpability was reduced compared to her husband and MacFarlane.

A few prior posts focused on these defendants:

A few of many prior posts on other defendants in college admissions scandal:

May 21, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, May 20, 2020

TRAC data report provides snapshot into impact of COVID-19 on referrals for federal criminal prosecution

The Transactional Records Access Clearinghouse (TRAC) has this great new online report under the title "How Is Covid-19 Impacting Federal Criminal Enforcement?". The figures in the report are worth checking out by clicking through, but this introductory text highlights the main story:

Law enforcement agencies across the country have been referring fewer criminal cases to federal prosecutors since the coronavirus pandemic began.  While weekly referrals for federal prosecution during February and the first half of March averaged around 4,500 per week, referrals fell to only 1,800 during the last week of March.  The Trump administration issued new guidance on Sunday evening, March 15, allowing some federal employees to work from home.  Previously, only those at high risk of health problems could telework.

Figure 1 plots the number of referrals recorded as received by these federal prosecutors day-by-day during the first six months of FY 2020 (October 2019 - March 2020). Starting in mid-March the numbers decline sharply. (As the plot shows, normally few referrals are recorded during Saturday or Sunday producing a predicable weekly cycle in the plot. A decline during the holidays over Christmas is also evident.)

Each weekday, U.S. Attorney offices from around the country typically receive hundreds of referrals.  Most of these came from federal investigative agencies.  Some originate from local and state law enforcement.  Each referral is typically assigned to an assistant U.S. attorney who determines whether or not to charge the suspect with committing one or more federal crimes.

I am inclined to guess that this 60% decline in federal prosecutions persisted through April, and that into May there might have started to be a rebound. Whatever the particulars, these TRAC data provide one accounting of how the cornoavirus and lockdowns have dramatically impacts the usual flow of cases into the federal criminal justice system.  Lockdown realities have surely disrupted this flow at other junctures (e.g., indictments, trials/pleas, sentencings), and I suspect it will be many months (maybe even years) before we can take full stock of COVID shock.

May 20, 2020 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Shadow Bargainers"

The title of this post is the title of this notable new article authored by Ronald Wright, Jenny Roberts and Betina Wilkinson.  Here is its abstract:

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate.  This article looks into the bargaining part of plea bargaining.  It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.”  This is a theory that some defenders embrace and others reject.  Describing the factors they believe to be important in plea negotiations, some public defenders — those who emphasize the importance of collateral consequences or the pre-trial custody of their clients — do not stress the likely outcome at trial.  Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework.  These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome.  Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor towards an outcome that is independent of any likely trial result or post-trial sentence.  These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial.  Multivariate analysis of the survey answers allows us to identify which background factors identify the attorneys that embrace each of the distinct theories of negotiation.

After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices.  Here, defenders’ self-reported bargaining methods do not measure up to their declared aspirations.  Their own descriptions of the fact investigations and legal research they typically perform ignore some viable outcomes that their clients might prefer.  Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap between theory and practice.

May 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge finds BOP has "made poor progress in transferring" vulnerable inmates out of federal prison COVID hotspot

Last month, as detailed here, US District Judge Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison.  Federal officials appealed this order, but a Sixth Circuit panel two weeks ago refused to disturb it.  But, as detailed by this new press report concerning this new order from Judge Gwin handed down late yesterday, it appears that BOP is just largely refusing to do what the Judge ordered.  Here are the details from the press report:

A judge said Tuesday that officials have not complied with his directive from last month to clear out the sole federal prison in Ohio to address the spread of coronavirus, which has left nine inmates dead and more than 100 others infected.  U.S. District Judge James Gwin of Cleveland wrote in a new order that the Federal Bureau of Prisons has made “limited efforts” to protect vulnerable inmates at Federal Correctional Center Elkton. He wrote that the bureau must do more to identify, release and transfer the vulnerable inmates.

“Concerningly, Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order,” Gwin wrote in the 11-page order.

His new order tells the bureau to take more drastic steps, including loosening requirements on who qualifies for placement on home confinement.  If an inmate isn’t eligible for release, officials must explain why in detail, he wrote. Gwin told officials to provide such explanations for at least one-third of the inmates identified at risk every two days until they have accounted for everybody, with the first explanations due to him by the end of business Thursday.

David Carey, an attorney for the American Civil Liberties Union of Ohio, said that “this order represents recognition by the court that the BOP has failed to meet its obligations. We are certainly hopeful they will do so this time around,” he said....

Elkton, located about 100 miles south of Cleveland in Columbiana County, experienced an outbreak of the virus in recent months. The low-security complex is currently home to more than 2,300 male inmates and includes a central institution and a satellite facility. As of Tuesday, 137 inmates and eight staff members tested positive for the virus. Nine inmates have died....

[T]he ACLU said the bureau had slow-walked its response [to Judge Gwin's April 22 order]. It said the bureau has not, to date, identified any inmates who released on furlough or home confinement. It also said the bureau, which identified 837 inmates as susceptible, left some inmates off its list by not including certain medical conditions and those who are age 65.

The judge agreed. “By thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates,” Gwin wrote.

He directed the prisons bureau to eliminate certain criteria that inmates must meet to qualify confinement.  Those include eliminating requirements about length of time an inmate has served and disregarding whether they committed certain low or moderate offenses while in prison.  Per his order, an inmate is serving time for a violent crime might may also be eligible for home confinement if it happened more than five years ago. If an inmate cannot be given compassionate release, furloughed or moved to another facility, the prisons bureau must also explain why.

Prior related posts:

May 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Monday, May 18, 2020

An overview of federal compassionate release issues during this pandemic

As regular readers know, in lots of posts since enactment of the FIRST STEP Act, and especially since federal prisons started dealing with the current urgency of a global pandemic, I have made much of a key provision allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Unsurprisingly, as the number of motions and rulings around this provision increase, others are taking notice of how courts are taking stock.  This new Bloomberg Law piece, headlined "Virus Forces Judges Into Life-or-Death Calls on Inmate Releases," provides a timely overview of this developing jurisprudence.  Here are excerpts:

Judges are interpreting the law on the fly as they face an unprecedented spike in requests for “compassionate release” from prison, coming to different conclusions about what can be done in the context of a pandemic.  The swell of requests for what’s known as compassionate release come after the passage of a law, written before the Covid-19 outbreak, that made it easier for those requests to be filed with the courts.

Federal judges ruled on more than 400 petitions for compassionate release in March and April, compared with only 16 in the same months last year, according to a Bloomberg Law analysis of trial court-level filings.  “I had never seen a compassionate release motion before the pandemic, and now I’ve seen more than 10,” U.S. District Judge Jed S. Rakoff, a senior judge in the Southern District of New York, said in an interview.

Under the law passed in 2018, judges can make a determination about compassionate release after the U.S. Bureau of Prisons has said “no” or doesn’t respond to the inmate’s request in 30 days.  Those determinations are highly individualized and outcomes can vary widely from judge to judge, all of whom are now weighing requests without updated guidance.

The influx is touching every corner of the legal system. Lawyers and advocates are frustrated releases aren’t being granted more often, while probation officers are working with limited resources to respond to an influx of them, and inmates in close quarters fear for their lives....

“A system that normally takes years to resolve disputes suddenly has to resolve a mountain of life-or-death disputes in days. All that judges can do is their level best,” said Matthew Stiegler, an attorney who focuses on federal appeals in the Third Circuit, told Bloomberg Law....

The decision to grant a compassionate release largely hinges on whether that inmate has what the statute calls “extraordinary and compelling” circumstances. That includes failing health in old age, a terminal illness, or caring for a partner or child if they are incapacitated.

In the past, those requests only made their way into court after the Bureau of Prisons agreed the request should be granted.  That system was criticized for being slow and inefficient.  The First Step Act, a bipartisan bill that became law in 2018, addressed those concerns, in part, by giving inmates the route to take their requests to court.

“When Congress passed the law and that language was in there it made sense, but no one expected a pandemic,” Ricardo S. Martinez, chief judge of the Seattle-based U.S. District Court for the District of Western Washington, said in an interview.  “After the First Step Act came into place we immediately saw a jump in those petitions,” said Martinez, who is chair of the Criminal Law Committee of the Judicial Conference, the federal judiciary’s policy-making body. That’s been exacerbated by the virus, but even after the pandemic subsides, Martinez said he foresees a continuing high number of petitions each year....

The influx of cases may bring more clarity to the statute those determinations rely on.  “The best that could come out of this is that through this process we really see where the statute could have areas for improvement and definition and those things happen as a result of these decisions being made,” [Sarah] Johnson, the supervising U.S. probation officer, said in an interview.

Judges are making a point to say that their decisions are being made in the special context of the virus, but that doesn’t mean they will adhere to that when the pandemic is over, Rakoff said.  “Many of us, including myself, are taking a much deeper look at this statute than we’ve ever had reason to do before and some of what we’re deciding may shape the law for a long time to come,” he said. 

May 18, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Reviewing the emerging jurisprudence around FIRST STEP Act resentencings

Writing al Law360, Emma Cueto has this notable new piece headlined "With First Step, Courts Diverge In Filling In The Law's Gaps."  Here are excerpts:

More than a year after the passage of the First Step Act — which, among other things, made certain sentencing reforms retroactive — courts have continued to work out the procedural questions surrounding how the act should be applied and what judges must consider when resentencing federal offenders.  And some courts have come to very different conclusions, putting defendants on disparate footing depending on where they are based.

In the most recent case examining a First Step Act resentencing, the Sixth Circuit ruled on May 7 that defendants are entitled to appeal a judge's resentencing decisions based on reasonableness, though the courts reiterated a previous decision that trial courts are not required to give defendants a holistic, or what's known as a plenary, review.  The result was that the appellate court upheld the resentencing decision of Benjamin Foreman, who had been convicted of several drug-related crimes, even though it affirmed his right to appeal the sentence....

In the initial wake of the First Step Act, courts spent some time hashing out questions of who, precisely, was eligible to have their sentences recalculated.  With those questions largely resolved, courts have turned now to pinning down the details of what approach judges should take to resentencing under the new law, with different federal appellate courts coming to different conclusions.

The Fourth Circuit, in a case decided in April, issued a more defendant-friendly decision in USA v. Chambers, in which it concluded in a split decision that the trial court should have taken a broader view and could consider a wider-ranging set of factors, including the conduct of Brooks Chambers, who had been convicted of a drug offense, while incarcerated.

The court stopped short of requiring a plenary resentencing, which would give defendants additional rights, such as the right to an in-person hearing, and which Chambers did not explicitly request in the appeal. However, the decision did send a message that judges should consider a wide variety of factors in First Step Act cases, rather than focusing solely on a few select criteria....

At the other end of the spectrum, the Fifth Circuit ruled in 2019 that the First Step Act does not allow for a plenary resentencing. In that case, USA v. Hegwood, Michael Hegwood also objected to his designation as a career offender during resentencing, arguing that since his conviction in 2008, there had been changes to the law that meant he would not be a career offender if sentenced today.... The Fifth Circuit, however, disagreed, saying that when the court recalculates a sentence it should only make the changes specifically triggered by the First Step Act, and should not consider other changes to the law since the original sentence was imposed....

The difference in opinions between the circuit courts may eventually wind up before the U.S. Supreme Court, which is the final authority in deciding circuit splits.  In the meantime, however, defendants and their attorneys find themselves trying to make the most of the existing frameworks.

"To me, a lot of these doctrines don't matter so much as who your judge is," said Michael Holley, a federal public defender in Tennessee, which is part of the Sixth Circuit.... Some judges choose to consider a wide range of factors when recalculating a sentence, including post-sentencing behavior or changes in the law since the sentence was first imposed, which can result in larger reductions. Others choose to take a more narrow approach, keeping sentences from coming down as much.

May 18, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, May 17, 2020

Still more grants, so why not yet another listing of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts here and here and here and here and here and here and here and here more linked below, I have highlighted a number of the many, many COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).   I keep receiving positive feedback concerning these prior posts from various quarters, and so I will keep reporting on these kinds of rulings every time I discover a dozen or more.   

I have noticed that new ruling from the prior week often appear on Monday and Tuesday, so this list is likely just a partial accounting of recent grants of sentence reductions to show up on Westlaw this morning.  Still, I like to do a round up before the latest list of new grants of sentence reductions gets too long, and so here is a list based on rulings since my last posting from just last Wednesday: 

United States v. Brooks, No. 07-cr-20047-JES-DGB, 2020 WL 2509107 (CD Ill. May 15, 2020)

United States v. Gonzalez, No. 3:17-cr-00062 (JAM), 2020 WL 2511427 (D Conn. May 15, 2020)

United States v. Lopez, No. 18-CR-2846 MV, 2020 WL 2489746 (D N.M. May 14, 2020)

United States v. Mattingley, No. 6:15-cr-00005, 2020 WL 2499707 (WD Va. May 14, 2020)

United States v. Williams, No. 06 CR 451-10, 2020 WL 2494645 (ND Ill. May 14, 2020)

United States v. Ginsberg, No. 14 CR 462, 2020 WL 2494643 (ND Ill. May 14, 2020)

United States v. Handy, No. 3:10-cr-128-8 (RNC), 2020 WL 2487371 (D Conn. May 14, 2020)

United States v. Arey, No. 5:05-cr-00029, 2020 WL 2464796 (WD Va. May 13, 2020)

United States v. Kubinski, No. 3:93-CR-28-1H, 2020 WL 2475859 (ED N.C May 13, 2020)

United States v. Sedge, No. 16-cr-537(KAM), 2020 WL 2475071 (EDNY May 13, 2020)

United States v. Gutman, No. RDB-19-0069, 2020 WL 2467435 (D Md. May 13, 2020)

United States v. Cassidy, No. 17-CR-116S, 2020 WL 2465078 (WDNY May 13, 2020)

United States v. Scott, No. 95-202-CCB-2, 2020 WL 2467425 (D Md. May 13, 2020)

I have mentioned in a number of prior posts that I am confident that these Westlaw listings likely do not represent all sentence reductions being granted by federal courts these days. Proof of this reality comes via this new Law360 article headlined "Manafort's Release Helps Spring Ex-NFL Lineman From Prison." Here is the start of this article reporting on a ruling not (eyt?) on Westlaw:

Citing the compassionate release of former Donald Trump campaign chairman Paul Manafort, a federal judge said Friday that a former NFL lineman should be able to serve the rest of his prison sentence for a $2.5 million real estate fraud scheme in home confinement to protect him from COVID-19.

U.S. District Judge Mark L. Wolf's bench ruling puts Robert "Bubba" Pena in line to be released from Federal Medical Center, Devens, the central Massachusetts prison. Pena has argued his age, 70, and the fact he is black make him more likely to face serious complications if he contracted the virus.  Pena has pointed to research showing that black Americans are dying at a disproportionately high rate from the virus, likely due to underlying economic and health factors.

Prior recent related posts since lockdowns:

UPDATE: I mentioned above that new rulings from the prior week often seem to appear on Westlaw on Monday.  Sure enough, here are a few more grants I noticed as of Monday morning:

United States v. Pomante, No. 19-20316, 2020 WL 2513095 (ED Mich. May 15, 2020)

United States v. Sholler, No. 17-cr-00181-SI-1, 2020 WL 2512416 (ND Cal. May 15, 2020)

United States v. Young, No. 4:16-40036-TSH, 2020 WL 2514673 (D Mass. May 15, 2020)

United States v. Lee, No. 19-cr-00419-SI-1, 2020 WL 2512415 (ND Cal. May 15, 2020)

May 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

After DC Circuit denies en banc review, wondering what might be next for litigation over federal lethal injection plans

As reported in this Bloomberg News piece, headlined "D.C. Circuit Won’t Reconsider President Trump’s Execution Win," on Friday "President Donald Trump and Attorney General William Barr got one step closer in their quest to resume federal executions, as a full panel at the U.S. Court of Appeals in Washington has declined to reconsider last month’s three-judge panel ruling in the government’s favor."  The DC Circuit order, available here, was unanimous with only Judge Tatel adding this statement:

TATEL, Circuit Judge: Even though I believe this case is en banc worthy, I did not call for a vote because, given that the Supreme Court directed this court to proceed “with appropriate dispatch,” Barr v. Roane, 140 S. Ct. 353 (2019), I agree that “[our] review should be concluded without delay,” Opp’n to Pet. for Reh’g En Banc 15.

Normally, it might be a given that this development would prompt the federal capital defendants to seek review in the US Supreme Court. But, critically, I do not believe there are pending execution date from these capital defendants and the split nature of the DC Circuit's panel ruling, as discussed here and here, may make it hard for DOJ to move forward with any execution plans.  The Bloomberg article speaks to some of this enduring uncertainty:

But it’s not clear that the prisoners are in a hurry to get back before the high court. They might prefer to go back down to the district court, whose Nov. 21 preliminary injunction the three-judge panel upended, to further litigate the issues in this complex case.

“The federal death row prisoners’ challenge to the government’s flawed execution protocol will continue,” their lawyer, Cate Stetson, said on Friday after the full-panel denial.  “The Court of Appeals’ fractured decision leaves many questions about the legality of the government’s execution protocol unresolved,” she said. “We will be actively assessing all available avenues to ensure that no federal executions take place until the courts have had an opportunity to review all outstanding issues.”

Given that the federal capital defendants previously got a favorable ruling from the district judge presiding over these matters, and especially given that it seems that at least five SCOTUS Justices are not too keen on litigation over execution protocols, I would be inclined to predict that the defendants here might be content to continue fighting various battles in the low courts before risking a loss in any litigation war waged at SCOTUS.

Prior related posts:

May 17, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Prisoner Trade"

The title of this post is the title of this new article by Emma Kaufman recently posted to SSRN.  Here is its abstract:

It is tempting to assume that the United States has fifty distinct state prison systems.  For a time, that assumption was correct.  In the late twentieth century, however, states began to swap prisoners and to outsource punishment to their neighbors.  Today, prisoners have no right to be incarcerated in the state where they were convicted, and prison officials may trade prisoners — either for money or for other prisoners — across state lines.

Interstate prison transfers raise questions about the scope of states’ authority to punish, the purpose of criminal law, and the possibilities of prison reform.  Yet apart from prisoners and their families, few people know that prisoners can be shipped between states.  Because information on prisoners is so hard to obtain, scholars, lawyers, lawmakers, and even the judges who impose prison sentences often have no idea where prisoners are held.

Drawing on a wide range of primary sources, including data uncovered through open records requests to all fifty states, this Article offers the first comprehensive account of the prisoner trade.  It demonstrates that states have far more authority than one might expect to share and sell prisoners.  It reveals that certain states rely on transfers to offset the actual and political costs of their prosecution policies.  And it critiques the pathologies of interstate punishment, arguing that courts should require consent before a prisoner can be sent outside the polity whose laws he has transgressed.

May 17, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, May 16, 2020

Two more great reports from NYU Center reviewing state clemency history in New York and Connecticut

As noted prior posts here and here, the NYU School of Law's Center on the Administration of Criminal Law has on-going project focused on state clemency histories with reports on particular state experiences.  The first two of these reports looked at Pennsylvania and Massachusetts, and now I see the project has produced new reports on developments in New York and Connecticut.  Here are titles, links and the start of the reports:

"Taking Stock of Clemency in the Empire State: A Century in Review"

Clemency in New York has long been declining, while the state’s prison population has grown dramatically. Between 1914 and 1924, New York averaged roughly 70 commutations per year, equal to the total number granted between 1990 and 2019. In 1928, Governor Al Smith granted 66 commutations from a total prison population of 7,819. Had commutations been granted at an equivalent rate in 2019, there would have been approximately 373; in actuality, there were two.

"Searching for Clemency in the Constitution State"

Executive clemency was an important release mechanism in Connecticut until the 1990s, when commutation grants stopped completely.  The Board of Pardons granted 36 commutations between 1991 and 1994, then granted none in the following nine years.  The commutation process ceased operating entirely in 2019: the Board stopped accepting commutation applications pending revised guidelines and instructions, which the Board has yet to release.  As of May 2020, there is no way for someone incarcerated in Connecticut to apply for a commutation.

May 16, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions

A little opinion yesterday from a Sixth Circuit panel in US v. Smith, No. 19-5281 (6th Cir. May 15, 2020) (available here), has a lot of noteworthy elements.  For starters, the defendant appealed pro se and prevails. And he did so on a claim that the district court's failure to reduce his crack sentence following passage of the Fair Sentencing Act and FIRST STEP Act was problematic. Here is some of the backstory and the heart of the ruling from the panel opinion:  

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851.  Because he had a prior felony drug conviction, he faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory sentencing range under the United States Sentencing Guidelines would otherwise have been 168 to 210 months.  The district court sentenced him to the mandatory minimum: 240 months of imprisonment plus ten years of supervised release.

In 2018, Smith filed a letter with the district court asking for counsel to be appointed to review whether the First Step Act applied to his sentence.... The district court construed Smith’s letter as a motion seeking a sentence reduction under 18 U.S.C. § 3582(c).  The court determined that Smith was eligible for a reduction under § 3582(c) and the First Step Act, but declined to grant one.  United States v. Smith, No. CR 6:06- 021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).  Smith now appeals....

The district court acknowledged that under the current sentencing regime, Smith’s guideline range after applying the retroactive guidelines amendments would be 77 to 96 months of imprisonment and he would be subject to a 10-year mandatory-minimum sentence.  Smith, 2019 WL 1028000, at *3.  However, the district court denied Smith’s motion for a reduction, concluding that his original 20-year sentence remained appropriate....

The variance in this case is certainly a major one.  It is twice the maximum of the guideline range set by the statute, and two-and-a-half times what the guideline would otherwise be without the statutory minimum.  Moreover, the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline....

The district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.  After reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of 20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.  Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly discussed the nature and circumstances of Smith’s offense and the need to protect the public — two of the § 3553(a) factors.  The court pointed to the scale and harm of Smith’s criminal conduct and determined that Smith has a high risk for recidivism based on statistical information of people who, like Smith, have a significant criminal history.  However, these considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.  See 28 U.S.C. § 991(b); Rita v. United States, 551 U.S. 338, 348–49 (2007).  This is especially true when the district court previously found the at-guideline range sentence to be appropriate.

Ultimately, the district court failed to provide a sufficiently compelling justification for maintaining a sentence that is now twice the guideline range set by Congress. We are confident on remand that the district court can determine whether, in its discretion, a sentence less than 20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of the First Step Act and Fair Sentencing Act.

I am pleased to see that the Sixth Circuit panel was able to see problems with the ruling below without the help of counsel, but I find jarring and disturbing that the district judge here got this matter started by construing a letter requesting counsel as a motion seeking a sentence reduction that the judge then denied seemingly without any briefing. As readers may recall, just last week the Supreme Court dinged the Ninth Circuit in Sineneng-Smith for taking over a case from the parties, and I think the Sixth Circuit might have reasonably assailed the district judge for similarly problematic behavior here.

Last but not least, it should be noted that the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the US Sentencing Commission.  There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which "considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress."

May 16, 2020 in 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 (6)

Friday, May 15, 2020

How might an "Office of Plea Integrity" be best constructed and tasked to improve our bargained system of justice?

The question in the title of this post is a riff off this great new commentary from Clark Neily that seeks to turn the many lemons of the Flynn kerfuffle into tasty criminal justice reform lemonade.  The extended piece, headlined "Department of Injustice," is worth a read in full, and here is how it starts and closes:

While the Michael Flynn prosecution is currently imploding, no matter how it ends, the key lesson is clear: The nakedly coercive tactics routinely used by federal prosecutors to obtain admissions of guilt render those admissions utterly unreliable — not just in Flynn’s case, but in every case.  Congress should act immediately to restore public confidence in the integrity of our criminal justice system by reforming this fundamentally lawless and un-American practice.  And the Flynn case shows why that reform should be a top legislative priority....

Simply put, the reason we still have no clear understanding of precisely what Flynn did or didn’t do, and what crimes he did or didn’t commit, is because the entire case against him boils down to an in-court admission that Flynn now claims was coerced by DOJ prosecutors applying intolerable pressure to induce him to waive his right to a trial and simply confess his guilt, just as more than 90% of federal criminal defendants do today.  Indeed, it is hardly an exaggeration to say that criminal jury trials are nearly extinct on American soil: Some 97.4% of federal criminal convictions are obtained through plea bargains, and in some judicial circuits, it’s as high as 99%.

Recent developments in the Flynn case, including evidence that senior FBI officials engaged in shockingly inappropriate, perhaps even criminal, behavior during the Flynn investigation, give rise to a stark but crucial question: How many other guilty pleas would disintegrate as spectacularly as Flynn’s if the underlying case were subjected to the same searching review that Flynn’s finally received more than two years after the entry of his guilty plea?

Proponents of the current plea-driven system will likely counter that Flynn’s case was a politicized fluke, nothing more.  But there are good reasons to doubt that assurance. Consider the 2018 prosecution of rancher Cliven Bundy in Nevada for inciting violence against federal agents in the midst of a dispute over federal grazing land.  That case was dismissed with prejudice after the judge determined that DOJ prosecutors showed a “reckless disregard for the constitutional obligation to seek and provide evidence” by withholding documents and misstating facts about the case.  Or consider the 2008 corruption prosecution of Sen. Ted Stevens before the same judge in the Flynn case, Emmet Sullivan, during which DOJ prosecutors systematically withheld explosive exculpatory evidence that would have thoroughly gutted their case against Stevens.  Besides dismissing the charges against Stevens, an incensed Sullivan commissioned a thorough investigation of the DOJ’s misconduct in the case that culminated in a 500-page report that documents, in mind-boggling detail, prosecutors’ serial misdeeds in their corrupt attack upon a sitting senator.

Again, defenders of the current system will say those particular examples are rare, which is true — but so are trials in our plea-driven federal system, in which just 2% of cases go to trial.  If every single case went to trial with defense counsel as tenacious and aggressive as Flynn’s new team, how many of those cases might blow up as spectacularly as the Flynn, Bundy, or Stevens cases?  And if every one of those cases got the same internal tire-kicking by the DOJ that Flynn’s finally received, how many of them would simply be dismissed outright, as the DOJ now seeks to do with Flynn?

There’s no reason the latter question has to remain hypothetical, and Congress should move swiftly to ensure that it does not.  The pathologies engendered by the DOJ’s overreliance on coercive plea bargaining are too numerous and too deeply ingrained in our system to address all at once.  But something Congress can do immediately is establish within the Department of Justice an Office of Plea Integrity that would be charged with doing on a full-time basis what Jeff Jensen was brought in to do in the Flynn case, namely, pop the hood and give the whole case a searching and perhaps even skeptical review before clearing it to proceed to a guilty plea.  With upwards of 80,000 federal criminal prosecutions each year, it probably isn’t feasible to review every case, but it should not be unduly difficult to develop a system for selecting a mix of random and specially designated cases, including ones involving prosecutions of particular public interest, such as the Flynn and Stevens cases, for review.

Other reforms Congress should consider in the longer term include a statutory cap on the notorious “trial penalty,” which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.

Again, those are policies Congress may consider in the fullness of time.  But the creation of a Plea Integrity Unit within the DOJ is an obvious and urgent response to a botched high-profile prosecution that has justifiably shaken people’s faith in the competence and the integrity of the federal criminal justice system.

I love the idea of a body committed to ensuring pleas have integrity, but I am not quite sure why Clark Neily would trust the DOJ fox to review critically its favorite fat hen in its prosecutorial henhouse.  As I see it, there needs to be a body, largely independent of prosecutors, that is charged with takes a close and skeptical look at individual pleas and our entire modern bargained system of justice.

In this area, I have long been a fan of Professor Laura Appleman's clever idea of a "plea jury" (as detailed in an article and book): "a lay panel of citizens [that] would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."  I do not think a "plea jury" would solve all or even most of the modern problems with modern plea practices, but it strike me as a good start.  Perhaps that case-specific innovation could be coupled with an new independent judicial-branch commission, one perhaps structurally modeled like the US Sentencing Commission, that would be tasked with gathering data and issuing guidelines on sound plea bargaining practices.

As Neily notes, more than nine of every ten convictions come from the plea process, and yet there are few rules and even less data to inform the discretion exercised by prosecutors as they pursue investigation and structure the terms of plea bargains.  Wherever located and however structured, an "Office of Plea Integrity" would not instantly improve our bargained systems of justice, but it strikes me a good place to start. 

May 15, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, May 14, 2020

COVID in prison reaches SCOTUS as it refuses to vacate Fifth Circuit stay ... and Justice Sotomayor has much to say

The Supreme Court this evening denied, via a one-sentence order (available here), a request to vacate a stay that the Fifth Circuit put in place to halt, pending appeal, an injunction requiring a Texas prison take various measure to protect inmates from the dangers of COVID–19.  Though the full court used only one sentence to deny the request to vacate the stay, Justice Sotomayor (joined by Justice Ginsburg) added this statement about that denial that runs seven pages.  Here are a few excerpts from the start and end of her statement:

Under the circumstances of this case, where the inmates filed a lawsuit before filing any grievance with the prison itself, it is hard to conclude that the Fifth Circuit was demonstrably wrong on this preliminary procedural holding.

I write separately to highlight the disturbing allegations presented below.  Further, where plaintiffs demonstrate that a prison grievance system cannot or will not respond to an inmate’s complaint, they could well satisfy an exception to the PLRA’s exhaustion requirement.  Finally, while States and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death....

While I disagree with much of the Fifth Circuit’s analysis at this preliminary juncture, the court required reports every 10 days on the status of the inmates in the prison’s care.  I expect that it and other courts will be vigilant in protecting the constitutional rights of those like applicants.  As the circumstances of this case make clear, the stakes could not be higher.  Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” Supp. Brief Regarding Emergency Application 1.

Nothing in this Court’s order, of course, prevents the Fifth Circuit from amending its stay.  Nor does anything in our order prevent applicants from seeking new relief in the District Court, as appropriate, based on changed circumstances.  Finally, administrative convenience must be balanced against the risk of danger presented by emergency situations.  The prison, for example, has failed to explain why it could not simply decrease dorm density, despite having an empty unit at its disposal.

It has long been said that a society’s worth can be judged by taking stock of its prisons.  That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.  May we hope that our country’s facilities serve as models rather than cautionary tales.

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

As federal prison population continues remarkable decline, can anyone predict what might be a new normal?

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population numbers. In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now two weeks into May, and the new numbers at this webpage continue to show an even bigger weekly decline in total number of federal inmates as calculated by BOP: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to now now a total of 167,803 (as of May 14, 2020).

As I have detailed before, upticks in the number of persons placed on home confinement reported on the BOP's COVID-19 Update page seemingly account for less than a third of recent reported BOP population decreases.  Thus the data continue to suggest that a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is playing a huge role in the significant population declines in recent months.

As the question in the title of this post is meant to flag, I really have no idea what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus.  Just like the whole nation is likely to be unsure about what kinds of activities are "safe" for quite some time, it may be quite some time before anyone can state with confidence that federal prisons are "safe."  And, of course, with profound disruptions to federal grand juries and so many other aspects of federal criminal justice administration, it seems likewise impossible to predict just when the huge federal criminal justice machinery that typically sends over 5000 people to federal prisons each month will be operating at full capacity again.  And, as discussed in this prior post, perhaps at least some judges may be more reticent to send some people to prison even after federal officials say their facitlies are "safe" again.

So, dear readers, anyone bold enough to predict what the federal prison population might look like in, say, mid May 2021 or 2025 or 2030?

A few of many prior related posts:

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Wednesday, May 13, 2020

"The First Step Act and the Brutal Timidity of Criminal Law Reform"

The title of this post is the title of this notable new piece authored by Mark Osler and just posted to SSRN.  The title and author make me especially excited to have this new read, and here is its abstract:

It took decades to partially correct the egregiously wrong 100-1 ratio between crack and powder cocaine in federal law. Marijuana is still a Schedule I narcotic, despite universal condemnation of that categorization.  Even when we get it, criminal law reform comes achingly slowly and with brutal timidity, at a stunning cost in lives and freedom.  This article explores the grim history of this dynamic in the modern United States, explores the causes, and suggests solutions. It will appear in the New England Law Journal with responses from a variety of legal analysts.

May 13, 2020 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

After serving almost two years, Paul Manafort moved from prison to home confinement to serve remained for his 7.5 year federal sentence due to COVID concerns

As reported in this new ABC News piece, headlined "Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns," a high-profile, white-collar offender is getting moved from federal prison to home confinement due to coronoavirus concerns.  Here are the essentials (with a few details highlighted):

President Trump’s former campaign chairman Paul Manafort has been released from prison to serve the remainder of his sentence in home confinement because of concerns over the novel coronavirus, two sources familiar with the matter told ABC News.

Manafort was released from FCI Loretto in central Pennsylvania early Wednesday morning, the two sources said. An attorney for Manafort confirmed he had been released to home confinement but declined to comment further. The Bureau of Prisons also did not immediately respond to a request for comment.

Manafort, 71, has been serving out his more than seven-year sentence for charges related to special counsel Robert Mueller’s investigation in a federal correctional institution in central Pennsylvania. He was found guilty of tax fraud and conspiracy and was sentenced by a federal judge in March 2019. He was slated to be released from prison November 4, 2024. The charges stemmed from his work related to Ukraine between 2006 and 2015....

The decision to move Manafort to home confinement comes after his attorneys wrote a letter to the Bureau of Prisons (BOP) last month requesting that he be immediately transferred to home confinement because he is at high risk of contracting COVID-19 because of his age and pre-existing conditions.

While there are no known cases of coronavirus at FCI Loretto, sources have told ABC News that the prison was an old monastery, and due to the open configuration of the prison, would be devastated by the virus.

In December, Manafort was hospitalized for several days due to what sources described as a “cardiac event.” He recovered at a local Pennsylvania hospital under the supervision of correctional officers. His lawyers say his pre-existing conditions include high blood pressure, liver disease, and respiratory ailments and add that Manafort contracted influenza and bronchitis in February 2020. Manafrot takes 11 medications daily, according to his attorneys.

“We write on behalf of our client to request that the Bureau of Prisons (“BOP”) immediately transfer Mr. Manafort to home confinement to serve the remainder of his sentence or, alternatively, for the duration of the on-going COVID-19 pandemic in accordance with Attorney General William Barr’s directives to the BOP on March 26 and April 3, 2020, and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), enacted on March 27, 2020,” attorneys Kevin Downing and Todd Blanche wrote in an April 13 letter obtained by ABC News....

Last month the Justice Department issued a clarification regarding its policy on releasing certain inmates into home confinement, after a series of conflicting messages sparked confusion and uncertainty among prisoners, attorneys and federal courts. "[Bureau of Prisons] is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences," federal prosecutors wrote in a court filing in the Southern District of New York last month. "As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise priority consideration.”

Manafort has served just under 30% of his prison sentence, however prison officials have wide latitude when considering these releases on a case-by-case basis.

I am quite pleased to see that the federal Bureau of Prisons has had the good sense to place this elderly, ill, nonviolent offender into home confinement; Manafort is exactly the type of person in federal prison who is a high-health risk due to the coronavirus while being a low-public-safety risk when serving his sentence at home.  But I have highlighted some notable feature of this case in the hope that BOP will take the same approach to the many thousands of other elderly and ill nonviolent persons in federal prison, even when a particular prison facility currently has no confirmed COVID cases and even when an individual has served considerably less than 50% of a lengthy prison term.

I know that federal prosecutors have regularly opposed compassionate release motions around the country by making much of the fact that certain prison facilities currently have no confirmed COVID cases and the fact that a particular inmate has not served the majority of an original long sentencing term.  But if those factors did not keep the BOP from moving Paul Manafort from federal prison into home confinement, they ought not to keep federal judges from granting needed sentence reductions to enhance public health and community safety for less prominent persons at real risk of having a federal prison sentence become a death sentence.

Some of many prior related posts:

May 13, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Members of Congress submit amicus brief urging Ninth Circuit to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing

In this post way back in 2018 just a few days after the FIRST STEP Act became law, I took note of the notable provisions in the Act which expressly addressed just which types of offenders should get the benefit of the Act's new statutory sentencing provisions if their cases were already in the criminal justice pipeline.  In that post, I complimented Congress for addressing these issues, but I also noted that some matters left unclear such as whether "a defendant already sentenced earlier in 2018 [who has] his sentence reversed on some other ground and now he faces resentencing [could] get the benefit of any new provisions of the FIRST STEP Act upon resentencing."

Via this new press release, I now see that this resentencing question is before the Ninth Circuit and that a notable group of Senators are seeking to ensure the defendant gets the benefit of the FIRST STEP Act at his resentencing.  Here is the text of the press release:

U.S. Senators Dick Durbin (D-IL), Chuck Grassley (R-IA), and Cory Booker (D-NJ), lead authors and sponsors of the First Step Act — landmark criminal justice reform legislation — today submitted a bipartisan Amicus Brief to the Ninth Circuit Court of Appeals in United States of America v Alan L. Mapuatuli, a case related to the reduction of the second strike and third strike drug mandatory minimums.

The bipartisan Brief argues that Congress intended the First Step Act (FSA) to apply at post-FSA sentencing hearings, including when a defendant is before a court for sentencing after his or her initial sentence was vacated on appeal.  Congress intended to cover these cases by stating that the FSA applies “if a sentence for the offense has not been imposed” as of the FSA’s date of enactment.  However, the Justice Department is litigating the contrary position in United States of America v Alan L. Mapuatuli.

The Members wrote: “… the interpretation advanced by the Executive Branch and adopted by the district court in this case is contrary to Congress’s language and intent.  Reduced to its simplest form, that interpretation assumes that Congress intended to give legal effect to sentences that otherwise are void.  That assumption finds no support in the statutory text, contradicts the fundamental considerations that motivated Congress to enact the First Step Act, and produces inequitable outcomes that undermine the fairness and legitimacy of our criminal justice system.  That unquestionably is not what Congress intended.  For these reasons, amici respectfully submit that the district court’s judgment should be vacated and the case remanded for resentencing in conformity with the First Step Act.”

The full 20-page amicus brief in this matter is available at this link, and I applaud the Senators and their lawyers for urging the Ninth Circuit to ensure that the FIRST STEP Act is given the broad reach that it seems Congress intended and that its text reasonably supports.

May 13, 2020 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, May 12, 2020

Federal judge orders Danbury warden to start "evaluating inmates with COVID-19 risk factors for home confinement and other forms of release"

As reported in this local press piece, a "federal court gave a victory Tuesday night to about 1,000 inmates at the federal prison in Danbury who charged in a class action suit late last month that they are being confined in unconstitutionally dangerous conditions because authorities have failed to release prisoners to home confinement and take other steps to stem the spread of the coronavirus in the institution."  Here is more about this new ruling:

U.S. District Judge Michael Shea issued an order that gives the prison administration just days to identify inmates with health conditions that place them at risk for COVID-19 complications and to begin aggressively evaluating requests by prisoners for transfer to home confinement or compassionate release.

In his 74-page order, Shea refers to the “apparent failure” of the Danbury administration to carry out an April 3 memo by U.S. Attorney General William Barr ordering the administration at Danbury and other prisons to “maximize” emergency authority granted by Congress to release inmates to home confinement....

In their suit, the Danbury inmates — men and woman confined at three facilities within the larger, low-security institution — complained that the local administration was intentionally dragging its feet on compliance with Barr’s memo and Shea endorsed the complaint in his decision.  The inmates argued — and Shea agreed — that prisoner releases or transfers are necessary to decrease congestion and permit adequate social distancing within the institution.

Shea gave the Danbury administration about 13 days to provide him with a list of inmates eligible for transfer to home release and those who are not. In the case of those denied release, Shea ordered the prison to provide explanations.

The full 74-page ruling is available for download below, and here is how it gets started:

On March 27, 2020, Congress gave federal prison officials an extraordinary tool to confront the extraordinary threat posed by the novel coronavirus within prison walls: the authority to transfer any federal inmate from prison to confinement in his or her home.  A week later, the Attorney General of the United States urged the Director of the Bureau of Prisons (“BOP”) to “maximize” the use of that tool as soon as possible, stating in an April 3 memorandum that “[g]iven the speed with which this disease has spread through the general public,” and the Bureau’s “profound obligation to protect the health and safety of all inmates,” “it is clear that time is of the essence.” ECF No. 24-2 at 48-49.  The Attorney General’s memo was triggered by an outbreak of COVID-19, the disease caused by the novel coronavirus, at the Danbury Federal Correctional Institution (“FCI Danbury”), a low security prison in Danbury, Connecticut, and two other federal prisons; the memo directed the BOP to “immediately review all inmates who have COVID-19 risk factors” for potential placement in home confinement, “starting with inmates incarcerated at … FCI Danbury” and the other two facilities. Id. at 49.  This case — brought by four inmates at FCI Danbury — involves an apparent failure of the Warden and staff at FCI Danbury to take these exhortations seriously. The four inmates, all of whom have COVID-19 risk factors, have made a preliminary showing that officials at FCI Danbury are making only limited use of their home confinement authority, as well as other tools at their disposal to protect inmates during the outbreak, and that these failures amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the Eighth Amendment.  Accordingly, I grant in part the inmates’ motion for a temporary restraining order and issue an order that requires the Warden at FCI Danbury to adopt a process for evaluating inmates with COVID-19 risk factors for home confinement and other forms of release that is both far more accelerated and more clearly focused on the critical issues of inmate and public safety than the current process.  Factual disputes as to other issues the inmates raise preclude me from granting further relief at this time, but I also order an expedited period of discovery and schedule a hearing for June 11, 2020, to adjudicate the inmates’ motion for preliminary injunction.

Download 30 - Order on MTD and TRO

May 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Judge Breyer rejects plea agreement seeking to restrict defendant's statutory authority to pursue compassionate release

Amidst my review of the many federal sentence reductions under § 3582(c)(1)(A) that appear each day on Westlaw, a notable new opinion emerged from a notable judicial author.  Specifically, US District Judge Charles Breyer yesterday issued a 10-page "Order rejecting plea agreement" in US v. Funez Osorto, No. 19-cr-00381-CRB-4 (ND Cal. May 12, 20202) (available here).  For sentencing fans, Judge Breyer is notable in part because he is one of only two remaining active US Sentencing Commissioners (others might also think it notable that he is Justice Stephen Breyer's brother).  And the Funez Osorto opinion is notable for its rejection of a plea agreement based on a provision that is especially relevant in these pandemic days. 

I recommend the full Funez Osorto opinion, and here is a small taste including its start and finish:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed?  Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences?  What if the defendant’s children are effectively orphaned by the death of their other parent?  What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it?  What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence?  What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?  When should a court be able to consider such events and revise a previously imposed sentence accordingly?  How difficult should it be for a defendant to request this type of relief?

Congress has provided one set of answers to these questions, in the First Step Act ..... The United States attorney’s office has very different answers in this case, for this defendant.  Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement....

The point is this: while the Plea Agreement leaves open a path to compassionate release, it is hardly wider than the eye of a needle. It is far narrower than the avenues to relief provided by § 3582(c)(1)(A), and too narrow to provide meaningful relief in many of the circumstances that would render Funez Osorto eligible for relief.  And there is no doubt the Government would rely on the waiver provision to deny Funez Osorto compassionate release. It has recently attempted to do exactly that in another case before this Court.  That result is unacceptable for two reasons.  First, it undermines Congress’s intent in passing the First Step Act.  Second, it is inhumane....

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.  See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010).  As to terms such as this one, plea agreements are contracts of adhesion.  The Government offers the defendant a deal, and the defendant can take it or leave it.  Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”).  If he leaves it, he does so at his peril.  And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.  See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940).  Now imagine the choice the Government has put Funez Osorto to.  All that power — and the all too immediate consequences of opposing it — weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass.  That Faustian choice is not really a choice at all for a man in the defendant’s shoes.  But the Court has a choice, and it will not approve the bargain.

That leaves only one question, which is why?  Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?  Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner.  Inspector General Report at 49–50.  And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities.  Id. at 45–48. The waiver of compassionate release is senseless.

Judge Breyer asks a lot of good questions throughout this great opinion, but the final one seems to me to be depressingly easy to answer. He asks: "Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?".  The answer, as I see it, is that so many prosecutors get so accustomed to exercising their tremendous discretion in this way that it now seems to be a professional expectation.

May 12, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Monday, May 11, 2020

Federal Defenders write to members of Congress to detail BOP/DOJ failings in response to COVID-19

I just received a copy of this lengthy letter from the Federal Public & Community Defenders to Members of Congress. I recommend the 13-page letter in full, and here are some excerpts (with footnotes omitted):

We are grateful for the continued interest in the views of the Federal Public and Community Defenders (“Federal Defenders”) by Congress during the COVID-19 crisis. Federal Defenders and other counsel appointed under the Criminal Justice Act represent 90 percent of all federal defendants. We write because vulnerable individuals in federal detention need your help to protect them from serious illness or death. The following measures would provide badly needed relief:

  • A presumption of release under the Bail Reform Act, absent clear and convincing evidence that a person poses a specific threat of violence;
  • Broader tools to enable courts to release or transfer — even temporarily — individuals already sentenced, including broader authority to modify existing sentences, grant furloughs, and grant compassionate release; and
  • Ongoing, universal testing for all incarcerated individuals and staff, including at privatecontract facilities....

In just over a month, forty-eight individuals in BOP custody have died from COVID-19.  COVID-19 is tearing through BOP facilities; incarcerated individuals are being infected at a rate more than 6.5 times higher than in the United States.  Despite this, BOP has transferred less than 1.5 percent of the over 174,000 individuals in its custody to the relative safety of home confinement.  These cold numbers are proof of the government’s abdication of its duty.  That “moral and constitutional duty,” House Judiciary Committee Chairman Jerry Nadler has explained, requires DOJ to “prevent additional deaths among those who are detained or imprisoned under our laws.”

Congress should not be fooled by DOJ and BOP’s empty promises.  Federal judges around the country have used unusually blunt terms to describe the government’s behavior: “an outrage,” “deliberate indifference,” “Kafkaesque,” “illogical,” “alarming,” “unfathomable,” “offends the Court,” and “shocking[].”

A court-ordered inspection and evaluation last week of the Metropolitan Detention Center (MDC) in Brooklyn, the largest pretrial BOP facility in the country, laid bare DOJ and BOP’s false claims about their response to COVID-19.  The former Chief Medical Officer of New York City’s Correctional Health Services wrote in his report he was “alarmed by the facility’s failure to implement simple procedures” consistent with Centers for Disease Control and Prevention (“CDC”) guidelines, and he concluded there were “multiple systemic failures” that placed incarcerated individuals and staff at grave risk.  In response, the MDC has changed nothing.

Federal correctional officers everywhere are speaking out in the press, a national lawsuit, and by filing complaints with the U.S. Occupational Safety and Health Administration (“OSHA”) about insufficient PPE, non-existent social distancing, and other deviations from CDC guidance.  Under AG Barr’s watch, DOJ and BOP have ignored Congressional oversight, court directives, and whistleblowers.  DOJ and BOP have failed to fulfill their obligations to the American people, or to use the powers that Congress has given them. We urge Congress to take immediate and decisive action that does not rely on DOJ or BOP’s discretion.....

We entreat Congress to take immediate action.  Action to protect incarcerated individuals, prison employees, and our communities by requiring DOJ and BOP to implement basic and humane measures to prevent the spread of COVID-19 at all federal detention facilities. Action to prevent prosecutors from needlessly opposing the release of vulnerable individuals who pose no specific threat of violence.  And action to allow courts to release responsibly or transfer temporarily at-risk individuals to the safety of the community.

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Might getting more technology and more lawyers (as well as more masks) to prisoners help create a turning point for criminal justice change?

The question in the title of this post is my reaction to this notable news from Politico, headlined "Twitter CEO gives $10M to help prisons battle coronavirus: The donation will buy 10 million face masks and other equipment for people who are incarcerated and corrections employees." Here are excerpts:

Twitter CEO Jack Dorsey pledged $10 million Monday to help U.S. prisons battle the ongoing coronavirus pandemic as inmates living in confined quarters remain particularly vulnerable to the disease.  The donation to REFORM Alliance, a criminal justice advocacy group led by CNN analyst Van Jones, will buy 10 million face masks and other personal protective equipment for people who are incarcerated, as well as correctional officers, health care workers and other prison employees.

The money comes from Dorsey's #startsmall initiative, which he flooded with $1 billion in April using equity from his mobile payment company, Square.  Since then, funds have been distributed to organizations setting up testing sites and assisting health care workers, as well as battling hunger and domestic violence, among other causes.

“The criminal justice system needs to change," Dorsey said in a statement. "Covid-19 adds to the injustices and REFORM is best suited to help." REFORM Alliance, which counts hip-hop artists Meek Mill and Shawn "Jay-Z" Carter and internet billionaire Michael Rubin as founding partners, was created last year to reduce the nation's incarceration rate through changes to probation and parole policies.

The group has since launched a campaign to provide much-needed safety equipment to prisons.... REFORM Alliance also has called for elderly and at-risk inmates to be released to home confinement, for jail terms for technical violations and parole office visits to be suspended, and for inmates to receive free access to medical care, hand sanitizer and protective gear, among other measures.  The group will release a video today called #AnswerTheirCall and circulate a petition that demands public officials take action, both of which Dorsey and others are expected to promote on social media.

“Not only will this gift help us protect millions from the threat of Covid-19, but this level of support from a tech titan marks a turning point for the criminal justice reform movement," Jones said in a statement.

I am very pleased to see an eight-figure pledge to the criminal justice reform cause, and the REFORM Alliance has been doing great work in this space both before and during our COVID pandemic.  The group's new public service announcement, which concludes with an emphasis on how the coronavirus has impacted prison populations, is quite effective, and I am confident REFORM will put its new resources to good use.

That said, when I think about what brings about real dramatic changes in society, I think about disruptive technologies and disruptive people.  Twitter and other social media certainly counts as disruptive technologies, and yet prisoners have precious little access to these critical modern communication platforms.  Because we do not see regular posts and tweets coming from the mass number of humans that are caged in our prisons, we too readily forget about the mass number of humans that are caged in our prisons.  I do not know if this Twitter CEO could somehow pledge 10 million tweets to incarcerated persons, but I do want to believe that a lot more people would care a lot more about prisoners if the extraordinary humanity of all those incarcerated were all that was filling up our feeds in the weeks and months ahead.

As for disruptive people, my job as a law professor has me always thinking about lawyers and the dramatic changes they can bring.  Coming off my last posting, which notes that more prisoners have dies from COVID in weeks than have be executed in the last decade, I am still reflecting on the dramatic impact that lawyers have had on the administration of the death penalty in the last two decades.  The 75%+ decline in death sentences and executions during this period has been largely the result of the extraordinary work of an extraordinary number of lawyers litigating (and lobbying) aggressively and effectively against capital punishment.  

Of course, many lawyers have been litigating (and lobbying) aggressively and effectively against mass incarceration, but the problems and challenges are so huge and complex, more lawyers are always needed.  Notably, a $10 million pledge would be enough to provide a grant of $100,000 to one hundred lawyers to spend the next year representing prisoners.  With plenty of prisoners needing legal help, and plenty of law students graduating into an uncertain legal market, I would love to see funding that might allow creating a small prison litigation army to help take on the now extra deadly excesses of incarceration nation. 

(I especially love imaging other tech titans funding this project, starting with this article's list of five persons whose personal wealth has each already reportedly grown over $2 BILLION in 2020:  "Jeff Bezos, the founder and chief executive of Amazon has seen his wealth rise by $25 billion as of April 15, 2020; Elon Musk, chief executive of Tesla and founder of SpaceX: up $5 billion; MacKenzie Bezos, philanthropist, and the ex-wife of Amazon chief executive Jeff Bezos: up $8.6 billion; Eric Yuan, chief executive and founder of Zoom: up $2.58 billion; Steve Ballmer, owner of Los Angeles Clippers: up $2.2 billion."  If the select members of this group were just to give just 1% of their added wealth from 2020 to the cause, we could fund a large army of many thousands of lawyers that surely could help produce a "turning point for the criminal justice reform movement.")

May 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Sunday, May 10, 2020

"Criminal Law in Crisis"

The title of this post is the title of this timely new essay authored by Benjamin Levin and now available via SSRN.  Here is its abstract:

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state.  I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list.  Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy).  Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.”

To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated.  In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention.  In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all.  What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York?  In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days.  Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.

May 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Saturday, May 09, 2020

Can the coronoavirus finally get Ohio's bipartsan criminal justice reforms over the finish line?

The question in the title of this post is prompted by this new Fox News piece headlined "Ohio lawmakers hope for bipartisan reform of prison system stressed by COVID-19." Here are excerpts from a long piece:

Ohio lawmakers, lobbyists and researchers of various political stripes are finding a common cause in prison reform.  Bipartisan efforts to reform the troubled system have preceded the outbreak of COVID-19, but the virus has thrown the need for change into stark relief.

Across Ohio’s prison system, more than 4,300 people have tested positive for COVID-19 and at least 40 inmates and two staff members have died.  The Ohio Department of Rehabilitation and Correction (ODRC) has a current inmate population of nearly 50,000, about 10,000 above capacity.  Already cramped living conditions have been exacerbated and stressed by a virus that has forced 39,000 inmates into quarantine, according to ODRC data.

The prison system has long been scrutinized by the left for its overcrowding problem.  Now, with the system wracked by a deadly virus, conservative lawmakers are turning a critical eye to the status quo. “When you have organizations across the political and ideological spectrum saying, oftentimes, identical things about mass incarceration – it makes people take notice,” said Gary Daniels, a lobbyist with the ACLU of Ohio....

Two such displays are House Bill 1 and Senate Bill 3, which would allow for intervention in lieu of conviction and reform drug sentencing laws, respectively, The bills contain changes widely agreed upon as common-sense reforms to Ohio's criminal justice system. Both would put fewer people behind bars for minor criminal infractions, allowing for rehabilitation and community monitoring for crimes that don’t merit incarceration....

Still, bipartisan acknowledgment of a problem doesn’t always prompt bipartisan legislative action. Solutions can languish in the statehouse for months while lawmakers debate the finer points. Sometimes party lines won’t be moved....

Cooperation between think tanks and policy advocacy organizations can be a prelude to lawmakers taking up a cause in committee. Rep. Diane Grendell, a Republican lawmaker from northern Ohio and former Court of Appeals judge, sits on the Ohio House Criminal Justice committee and anticipates seeing prison reform enacted reasonably soon. “We have failed in our prison system,” Grendell said. “We have more prisoners than we have jails for, we keep passing more and more laws, we have to really clean it up. And I think all sides agree on that. We just have too many people in prisons.”...

The Buckeye Institute has long lobbied for fiscally conservative policies.  Recently, those policies have included criminal justice reform like S.B. 3. Lawson said prisons are the state’s third-largest budget item behind Medicaid and education. The Buckeye Institute has backed prison reform bills alongside liberal groups like Policy Matters Ohio and the libertarian Americans for Prosperity....

Ohio Rep. Erica Crawley, a Democrat from southeastern Columbus, isn’t as hopeful about a new era of bipartisanship in Ohio, though she does recognize the likelihood of criminal justice reform. “The pandemic has really brought those concerns and conversations to the forefront,” she said. “… We are having a really substantive conversation about rehabilitation. Obviously, we can’t lock inmates up and get out of this drug problem.”

For years, Ohio has been at the center of the nation’s opioid epidemic, with the state prison and county jail systems bearing the brunt of the resulting increase in incarceration.... Crawley said current reform efforts are good, but don’t go far enough. She said the bills under consideration wouldn’t do enough to mitigate the prison population enough to matter if the state were struck with a future pandemic.

“Right now, we have over 15,000 inmates who are considered low-level, nonviolent offenders,” Crawley said. “A lot of those are drug convictions. S.B. 3 would still allow people to be incarcerated for small amounts of drugs.  Until we have consensus and local court policy guidelines, we’re going to continue to see the same problems. If we have another pandemic, we’re going to be in the same position.”

I want to be optimistic that Ohio's General Assembly might get both House Bill 1 and Senate Bill 3 to the desk of the Governor in short order.  But these bills have been "stuck" in the Ohio GA for quite some time, and Ohio's prison population has been way over capacity for even longer.  And despite a lot of public policy groups on both sides of the aisle supporting reform, many of the anti-reform usual suspects (e.g., prosecutors and police) have so far kept these relatively modest proposed reforms from becoming law.  I sure want to believe that the COVID crisis will get the Ohio GA to finally get these reforms enacted, but I never count any sentencing reform chickens before they are fully hatched.

May 9, 2020 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"Decentralizing Clemency: Decentralizing the Commutation Power to Invigorate Sentence Reduction"

The title of this post is the title of this new paper recently posted to SSRN and authored by Riley Kane, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic has only become more timely and important in recent months.  Here is this paper's abstract:

Reforming sentencing and reducing prison overcrowding requires a focus on the future to ensure just punishments and the past to re-evaluate harsh punishments from the ‘tough on crime’ era.  This paper focuses on ending those past wrongs.  Executive clemency is sometimes discussed as a method for addressing harsh punishments, but there are only so many governors and Presidents.  This paper proposes amending the Ohio Constitution to grant the elected county prosecutors a commutation power subject to veto by the governor.  This would decentralize clemency and create a new, potentially system-reshaping tool to address harsh sentences and empower reform-minded prosecutors.  The paper additionally discusses other methods to expand clemency and favors adopting the novel constitutional amendment in addition to other reforms for maximum impact.

May 9, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 08, 2020

Another robust week for COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts (here and here and here and here and here and here and more linked below), I have highlighted many, many rulings involving COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that I have found via Westlaw.  I have received positive feedback concerning these prior posts from various quarters, and so I will continue these periodic posts as we continue to see these kinds of grants.  (And, as I have said often, my Westlaw listings likely do not represent all sentence reductions being granted by the federal courts these days.) 

Though rulings for Friday, May 8 do not yet appear on Westlaw, this week has already brought an extra long list of new grants of sentence reductions (a few of which were from last week but just recently showed up on Westalw):  

United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (ND Ill. May 7, 2020)

United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (ED Mich. May 7, 2020)

United States v. Howard, No. 4:15-CR-00018-BR, 2020 WL 2200855 (ED NC May 6, 2020)

Casey v. United States, No. 4:18-cr-4, 2020 WL 2297184 (ED Va. May 6, 2020)

United States v. Quintero, No. 08-CR-6007L, 2020 WL 2175171 (WDNY May 6, 2020)

United States v. Reid, No. 17-cr-00175-CRB-2, 2020 WL 2128855 (ND Cal. May 5, 2020)

United States v. Moskowitz, No. 11-CR-793-1 (WFK), 2020 WL 2187770 (EDNY May 5, 2020)

United States v. Pabon, No. 17-165-1, 2020 WL 2112265 (D Mass. May 4, 2020)

United States v. Echevarria, No. 3:17-cr-44 (MPS), 2020 WL 2113604 (D Conn. May 4, 2020)

United States v. Early, No. 09 CR 282, 2020 WL 2112371 (ND Ill. May 4, 2020)

United States v. Ardila, No. 3:03-cr-264 (SRU), 2020 WL 2097736 (D Conn. May 1, 2020)

United States v. Soto, No. 1:18-cr-10086-IT, 2020 WL 2104787 (D Mass. May 1, 2020)

United States v. Kelly, No. 3:13-CR-59-CWR-LRA-2, 2020 WL 2104241 (SD Miss. May 1, 2020)

United States v. Fischman, No. 16-cr-00246-HSG-1, 2020 WL 2097615 (ND Cal. May 1, 2020)

United States v. Norris, No. 7:19-cr-36-BO-2, 2020 WL 2110640 (ED NC Apr. 30, 2020)

As I have said before, It is heartening to see these types of rulings from coast-to-coast and lots of places in-between.  I am hopeful, whenever life calms down a bit, that I might be able to assess and analyze in some way whether there are some broader trend and themes to be found in these grants (as well as in denials of these motions).  For now though, I have to be content with just listing the grants and being pleased there continue to be grants to list.

Prior recent related posts since lockdowns:

May 8, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Yet another Texas execution postponed, though purportedly not for COVID reasons

Texas had an execution scheduled for next Wednesday, but no longer as explained in this local article: "An East Texas man who asserts that he is intellectually disabled has won a reprieve from his execution scheduled for next week for a 2007 shootout that left two sheriff’s officers dead." Here is more:

Randall Wayne Mays was set to receive lethal injection May 13 for the shootings at his Henderson County home.  In an order issued Thursday, the Texas Court of Criminal Appeals issued an execution stay and remanded Mays’ case to the trial court in Henderson County for review of his intellectual-disability claim.

Mays’ attorneys say the 60-year-old suffers from delusions and thinks Texas wants to execute him over a renewable energy design he believes he created....  Mays had previously won reprieves in October and in 2015.

Six other executions scheduled in Texas for earlier this year have been postponed because of the novel coronavirus outbreak statewide.  Besides Mays' intellectual-disability claim, his attorneys had also asked the appeals court for an execution stay because of the pandemic. The appeals court did not address that request in its order.

The next execution in Texas is scheduled for June 16.

Though this reprieve was not based on the COVID pandemic, I wonder if the Texas Court of Criminal Appeals was just a little bit more willing to grant the defendant his requested relief because of the many challenges posed to courts and corrections officials these days. I suspect that, even when courts and litigants do not make express reference to COVID concerns, they still cannot help but look at all criminal justice issues through a somewhat different lens.

With Texas starting to open up, it will be especially interesting to see if the state's two scheduled excutions for mid June and early July go forward. And, in the meantime, Missouri has an execution schedule for May 19, and it seems that the state is seriously prepared to move forward (see, e.g., press reports from Mother Jones and the St. Louis Dispatch).

Some prior related capital COVID posts:

May 8, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 07, 2020

Always pleased to see more opposition to jail time and support for retroactive decarceral reforms ... and hoping to see it in all settings for all people

This new Austin American-Statesman article, headlined "Texas Supreme Court orders release of jailed salon owner who illegally reopened," highlights interesting developments and notable statements in the litigation surrounding a high-profile COVID-related case in the Lone Star State.  Here are the details:

The Texas Supreme Court on Thursday ordered Dallas County officials to free salon owner Shelley Luther from jail while its nine judges, all Republicans, weigh an appeal challenging her incarceration as improper.

The emergency order directed county officials to release Luther, who reopened her salon despite state restrictions, on a personal bond with no money required, “pending final disposition of her case.”  County officials also were ordered to file a response to the challenge by 4 p.m. Monday, the same day Luther’s weeklong sentence for contempt of court would have ended.

The order came shortly after Texas Gov. Greg Abbott, seeking to end a political firestorm over Luther’s jailing, announced Thursday that local officials will be prohibited from jailing Texans for violating any of his numerous coronavirus-related executive orders.  “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement.  “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.” Abbott said this latest executive order, “if correctly applied,” should free Luther....

Luther, who opened Salon à la Mode nearly two weeks ago, was found in contempt for ignoring a court order to close from state District Judge Eric Moyé, who sentenced her to seven days in Dallas County jail Tuesday and hit her with a $7,000 fine.

The petition challenging Luther’s incarceration, filed Wednesday by lawyers who included state Rep. Briscoe Cain, R-Deer Park, argued that she was exercising her right to run a business in ways that protected customer health by, among other steps, requiring stylists to wear face coverings, seating patrons 6 feet apart and sanitizing regularly touched surfaces. “There is no evidence that her business posed any greater risk to the public than businesses being allowed to operate, such as movie theaters, day cares, and home improvement stores,” the Supreme Court petition said.

The fine and jail sentence came as barber shops and hair salons were allowed to reopen Friday under an executive order issued Tuesday by Abbott. Under Abbott’s previous stay-at-home order, issued in March, salons and other nonessential businesses were required to close....

On Wednesday, Abbott said jail time should be the last resort for those who disobey his executive order. But after receiving pushback from some conservative activists and lawmakers, who argued that his comments didn’t go far enough in criticizing government overreach, Abbott modified his orders Thursday.

State law sets the punishment for violating disaster-related executive orders at a fine of up to $1,000 and up to 180 days of jail time.

Abbott’s latest executive order suspended “all relevant laws” that allow jail time “for violating any order issued in response to the COVD-19 disaster.” The new order also allowed salons and barber shops to open immediately, instead of Friday, and made the change retroactive to April 2 to nullify any local regulations that could form the basis of jail time for business owners who violated a shutdown order.

Republicans took to Twitter to praise Abbott’s action Thursday. “I am pleased to see @GregAbbott_TX has removed jail as a punishment for violating exective orders.  Some local officials have been reckless, imprisoning women for wanting to work to put food on the table for their children,” said state Rep. Matt Shaheen, R-Plano....

“Gov. Abbott, throwing Texans in jail whose businesses shut down through no fault of their own is wrong. Thank you for admitting that,” said state Rep. Mike Lang, R-Granbury.

As many have noted in a variety of settings, there is a particularly ridiculous irony to enforcing social distancing rules by sending a person into a carceral environment in which social distancing is all but impossible.  But this story is a useful reminder that any number of judges, even in the midst of a pandemic, are still inclined to use jail time in what one Texas official calls a  "reckless" manner.  It is great to see criticism of the use of jail in this particular instance, but there are lots and lots and lots of examples of jail being used excessively.  I sure hope state Rep. Matt Shaheen and the many others speaking out in this case (including the Texas Attorney General and Senator Ted Cruz and many others) will keep speaking out against reckless jail sanctions.

Similarly, this story also shows that some Texas officials strongly believe that, upon recognizing that a problematic law has led to problematic incarceration, the law should be changed and that change should be given retroactive effect to free those subject to problematic incarceration.  I sure hope state Rep. Mike Lang and others will keep speaking up in support or decarceral legal reforms and ensure that any and all such reforms always get full retroactive effect to free those subject to laws that have been reformed for the better.

Of course, I am not at all confident that concern for poor use of incarceration and support for reparative efforts will be expressed in all setting from all these Texas officials or others.  Indeed, this Houston Chronicle report notes that "In April, two Latina women in Laredo were arrested and jailed for defying the lockdown by running nail salons out of their homes. No state officials intervened in their cases."

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Justice Dept dropping Flynn’s criminal case"

The title of this post is the title of the notable news in this new AP report.  Here is the first part of the article:

The Justice Department on Thursday said it is dropping the criminal case against President Donald Trump’s first national security adviser, Michael Flynn, abandoning a prosecution that became a rallying cry for Trump and his supporters in attacking the FBI’s Russia investigation.

The move is a stunning reversal for one of the signature cases brought by special counsel Robert Mueller.  It comes even though prosecutors for the last three years had maintained that Flynn had lied to the FBI about his conversations with the Russian ambassador in a January 2017 interview.  Flynn himself admitted as much, and became a key cooperator for Mueller as he investigated ties between Russia and the 2016 Trump campaign.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”  The documents were obtained by The Associated Press.  The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

The U.S. attorney reviewing the Flynn case, Jeff Jensen, recommended the move to Attorney General William Barr last week and formalized the recommendation in a document this week.  “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

The decision is certain to be embraced by Trump, who has relentlessly tweeted about the case and last week pronounced Flynn “exonerated,” and energize supporters who have taken up the retired Army lieutenant general as something of a cause celebre.  But it may also add to Democratic concerns that Attorney General William Barr is excessively loyal to the president, and could be a distraction for a Justice Department that for months has sought to focus on crimes arising from the coronavirus.

The Justice Department’s action comes amid an internal review into the handling of the case and an aggressive effort by Flynn’s lawyers to challenge the basis for the prosecution.  The lawyers cited newly disclosed FBI emails and notes last week to allege that Flynn was entrapped into lying when agents interviewed him at the White House days after Trump’s inauguration.  Though none of the documents appeared to undercut the central allegation that Flynn had lied to the FBI, Trump last week pronounced him “exonerated

The decision is the latest dramatic turn in a years-old case full of twists and turns.  In recent months, his attorneys have leveled a series of allegations about the FBI’s actions and asked to withdraw his guilty plea.  A judge has rejected most of the claims and not ruled on others, including the bid to revoke the plea.

Prior related posts:

May 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

SCOTUS dings Ninth Circuit panel for its "takeover of the appeal" of convictions for encouraging illegal immigration

I had not been following that closely the Supreme Court's consideration of the immigration case examining the proper reach of 8 U.S.C. §1324, United States v. Sineneng-Smith, No. 19-67 (S. Ct. May 7, 2020) (available here). But the Court's opinion in the case this morning caught my attention because the Justices decided not to decide the merits and instead decided to assail the Ninth Circuit's handing of the case.  Justice Ginsburg's opinion for the Court gives an account of how the Ninth Circuit panel solicited amicus briefs of the case, and then concludes this way: 

No extraordinary circumstances justified the panel’s takeover of the appeal.  Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others.  Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.  Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)).

As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.

For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.

Justice Thomas concurs in an opinion that starts this way:

I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether 8 U.S.C. §1324(a)(1)(A)(iv) is unconstitutionally overbroad.  In my view, however, the Court of Appeals’ decision violates far more than the party presentation rule.  The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.  That doctrine provides that “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”  United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008)).  Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application.  It appears that the overbreadth doctrine lacks any basis in the Constitution’s text, violates the usual standard for facial challenges, and contravenes traditional standing principles.  I would therefore consider revisiting this doctrine in an appropriate case.

May 7, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS unanimously reverses "Bridgegate" convictions as involving conduct not covered by federal property fraud statute

The US Supreme Court handed down a unanimous opinion this morning in Kelly v. United States, No. 18-1059 (S. Ct. May 7, 2020)  (available here), the high-profile political fraud case often called "Bridgegate."  Here is how Justice Kagan's short opinion for the full Court gets started:

For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey.  The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey.  For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee. But on these four days — with predictable consequences — only a single lane was set aside.  The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study.  In fact, they did so for a political reason — to punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.

Exposure of their behavior led to the criminal convictions we review here. The Government charged the responsible officials under the federal statutes prohibiting wire fraud and fraud on a federally funded program or entity.  See 18 U.S.C. §§1343, 666(a)(1)(A). Both those laws target fraudulent schemes for obtaining property.  See §1343 (barring fraudulent schemes “for obtaining money or property”); §666(a)(1)(A) (making it a crime to “obtain[] by fraud . . . property”).  The jury convicted the defendants, and the lower courts upheld the verdicts.

The question presented is whether the defendants committed property fraud.  The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct.  Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority’s money or property.  The Government contends it was, because the officials sought both to “commandeer” the Bridge’s access lanes and to divert the wage labor of the Port Authority employees used in that effort.  Tr. of Oral Arg. 58.  We disagree.  The realignment of the toll lanes was an exercise of regulatory power — something this Court has already held fails to meet the statutes’ property requirement.  And the employees’ labor was just the incidental cost of that regulation, rather than itself an object of the officials’ scheme.  We therefore reverse the convictions.

Some prior related posts:

May 7, 2020 in Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 06, 2020

Noting some new tales of the COVID-era challenges of criminal justice administration

In reviewing the news of the day, I came across a number of notable new stories about the (many) unique challenges that now arise as a global pandemic dramatically alters the administration of criminal justice.  Here are headlines and a highlight from a few of these pieces:

From The Appeal, "Covid-19 Is Creating A State Of Emergency For Incoming Public Defenders. Diploma Privilege Is The Only Solution."

The public defender system that sprung out of Gideon, however, has faced crises ranging from underfunding to staggering caseloads that make it impossible for defenders to effectively represent their clients.  Now, COVID-19 is ushering in a new crisis: several states including California as well as the District of Columbia have postponed their bar exams, while other states have enacted a provisional licensing scheme, meaning that while law school graduates may be able to work in temporary, limited capacities performing the work that Gideon mandates, they will also bear the burden of preparing for the bar.  So, what will happen to the marginalized — and Gideon’s mandate — when an entire class of public defenders cannot begin their jobs as scheduled in the fall of 2020?

From Law360, "Grand Jury Suspensions A Looming Problem For Prosecutors":

As court closures stretch on during the coronavirus pandemic, the suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back.

From The Marshall Project, "A Dangerous Limbo: Probation and Parole in the Time of COVID-19":

When people are accused of violating their probation or parole, they often have to wait behind bars for a series of hearings and procedural hurdles to determine if they are guilty and what the consequences will be.  Think of a criminal trial, but less formal and with fewer constitutional protections.  Even “one day in custody can totally disrupt someone’s life to the point of almost no return,” says Michael Nail, Georgia’s commissioner of community supervision.  Now, coronavirus can make custody downright dangerous.

p>From WSYX/WTTE, "Ohio prosecutors have backlog of cases, courtrooms not expected to fully reopen until June":

Right now many victims and cases are in limbo because of the coronavirus pandemic.  Court systems all across Ohio are looking at how to handle the volume of cases that haven't been touched in weeks and new cases too. In Fairfield County, Prosecutor Kyle Witt says they've been working diligently to figure out how to give those arrested and victims their day in court.  The county's grand jury met for the first time today in weeks. "We're resuming today, we're limiting the number of people in that room. We are providing masks and gloves and social distancing," said Witt.

May 6, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Discouraging confirmation of my concern that federal judges are not yet really re-thinking their sentences amidst a COVID pandemic

In this post on Monday, I highlighted Walter Pavlo's interesting Forbes piece, headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future."  In the piece, Pavlo strikes an optimistic tone about how COVID might be altering federal judicial sentencing attitudes:

Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly. 

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing."

In response, I expressed some worry that Pavlo's perspective might be wishful thinking and I detailed a few reasons for my persistent pessimism even in pandemic times.  I also noted I was "eager to hear from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to 're-think their sentences'."  I was grateful to receive a lengthy email from thoughtful reader, who gave me permission to reprint part of this email:  

Thank you for all of you Covid-19 related sentencing coverage.  I was prompted to write by the post referenced above and your expression of interest in hearing from practitioners about sentencing right now and whether judges' sentencing practices are changing.  The answer is no.

You are not too pessimistic.  You are exactly right.  I've been a federal defender for about ten years.  I should be inured by now to the treatment of my clients, but seeing what is happening to them in federal prison right now -- and the utter apathy of most judges towards the situation -- is really heartbreaking.  Several pieces you have referenced capture it: our DOJ and judges have a mindless addiction to punishment.  Part of the problem is that so many of our judges are former prosecutors (and, by now, former prosecutors who grew up with the Sentencing Guidelines, so are completely invested in those Guidelines and do not even remember a time when sentences were shorter or judges made decisions without them).  Judges are very wedded to the punitive, incarceratory sentences that they impose.

[A recent] series of orders from my district really captures that (judge rejecting compassionate release and then another release request).  The judge recognizes that Covid-19 creates a dangerous situation for the defendant in prison.  But the judge just really wanted this nonviolent, fraud defendant to spend some years in a cage and he cannot let go of that desire, even if it means risking that person's life.

This relates to the point from the Cato piece you linked to earlier this week [available here]: We have known for a long time that prison conditions are bad.  Judges just accept it. And once they have come to accept it, the marginal increase in badness caused by Covid-19 is not going to be enough to move most of them.

More broadly, the reality is that if you imprison people on a regular basis, you need to construct a belief system that allows you to keep doing that.  Often, you first build it as a prosecutor and then you sustain it as a judge.  One component of that belief system tells you that whatever hardship a defendant suffers in prison is something that he caused by his own actions or something that he deserves for what he has done.  Another component tells you that in advocating/imposing harsh sentences, you are simply following "the law" (the Guidelines, the will of Congress, whatever) and you have no ultimate power over this "law," which is somehow controlled by someone else.  Those belief systems are not getting changed by one pandemic.

So what is with all the compassionate release grants? ... A few judges have been moved by the insanity of Covid-19 in prison, but I think it's a minority.  Many of these grants are on consent and are for defendants who had very little time remaining on their sentences.  In other words, judges will go along with letting you out if the prosecutor agrees you have been sufficiently punished.  And even in some of the better decisions, judges express regret that the defendants cannot be made to serve the full sentences they originally imposed.  That does not sound like long-lasting change in sentencing practices.

Sigh.

Prior recent related posts:

May 6, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

Tuesday, May 05, 2020

REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

May 5, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers?

As revealed in this way back link, it was mid May 2016 when then-candidate "Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court."  Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on the first Trump SCOTUS short-list, but these names were added later and now they are fixed as part of the Trump Supreme Court legacy.

This recent CBS article, headlined "Democrats push Joe Biden to release Supreme Court short list and run on future court battles," highlights "calls for Biden to copy the playbook of then-candidate Donald Trump, who in May 2016 released a list of 11 people he would pick from to nominate to take the late Justice Antonin Scalia's seat."  Here are some excerpts:

Several lawyers and activists told CBS News that Biden, a former public defender, should run on protecting the popular liberal legacy of Ruth Bader Ginsburg.  Progressives warn if Biden is not elected, the Supreme Court's current 5-4 conservative tilt could balloon into a potential 7-2 majority if Ginsburg, 87, and  Stephen Breyer, 81, choose to retire or face greater health troubles....

Ginsburg is an enormously popular figure in the Democratic Party, a truth that has been evident throughout the Democratic primary process — her portrait is frequently seen beaming on colorful t-shirts and tote bags. Some suggest that by tying his campaign to protecting her legacy, Biden would also highlight his previous pledge to nominate the first black woman justice if he is elected.

Demand Justice, a progressive court reform group, already has a list of several women who they view as qualified, including NAACP Legal Defense Fund Director Sherrilyn Ifill and California Supreme Court Justice Leondra Kruger.

Other names floated to CBS News as potential court picks for Biden included federal court judges Kentanji Brown Jackson and Tanya Chutkan, both Obama appointees to the federal bench.

"Clinton and [Tim] Kaine really needed a third person on that ticket to really get out individuals who weren't that excited by them as a team, and I think Joe Biden kind of has the same issue going forward," Melissa Murray, law professor at New York University and host of the Supreme Court-focused podcast "Strict Scrutiny," told CBS News. "Imagine how much more energizing it would be to also pick someone [for SCOTUS] who would excite parts of the Democratic base."...

Asked about the likelihood of releasing a list of potential appointees, Biden's campaign did not directly respond and highlighted his history with the Supreme Court.

Long-time readers may recall, as detailed in this post from Feb 2016, that I was an advocate for Judge Ketanji Brown Jackson to be nominated by Prez Obama for the 2016 opening, in part because of her history as a public defender and her time as a member of the US Sentencing Commission.  I would continue to be excited to see her on any SCOTUS short list, and there are a number of women-of-color on the Demand Justice short-list that ought also excite folks eager to have more Justices who are more skeptical of the modern criminal justice status quo.

For those of us who follow closely the work of courts, I think it can be quite informative and important to get a view of what kinds of individuals a potential President would expect to appoint to our highest court.  I sincerely hope that Joe Biden does come out with a SCOTUS short-list before too long and that it includes people who seem likely to help produce more and better criminal justice rulings from the Supreme Court.

May 5, 2020 in Campaign 2020 and sentencing issues, Who Sentences | Permalink | Comments (0)

Sixth Circuit panel refuses to stay district judge order to transfer vulnerable prisoners out of Elkton federal prison "through any means"

As heralded in this ACLU press release, yesterday "a three-judge panel on the Sixth Circuit Court of Appeals ruled unanimously denying the Bureau of Prisons request to stay enforcement of the district court order to begin transfer and release of 837 medically-vulnerable prisoners from Elkton FCI."  Here is more from the press release:

The ACLU of Ohio and the Ohio Justice and Policy Center brought this class action on April 13, and as of last week, seven prisoners died from COVID-19.

“Today’s decision again confirms the urgent need to respond to the crisis unfolding at Elkton. Lives of prisoners, prison staff, and the community depend on swift action to move the most vulnerable people away from the COVID-19 outbreak before it is too late,” added David Carey, Senior Staff Attorney for the ACLU of Ohio.  “We applaud the Sixth Circuit’s order,” added David Singleton, Executive Director of the Ohio Justice & Policy Center. “The court’s ruling is grounded in precedent and allows this litigation to proceed with the urgency that this life-and-death situation demands.”

Per the court’s order, “The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing. The COVID-19 virus, now a pandemic, is highly contagious…Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die.”

The panel's five-page ruling in this matter is available at this link, and here is a key paragraph:

Given the procedural posture of the case, we review not the merits of Petitioners’ Eighth Amendment claim, but whether the district court abused its discretion in entering the preliminary injunction.  We accept the district court’s factual findings unless we find them clearly erroneous.  Fed. R. Civ. P. 52(a)(6).  The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing.  The COVID-19 virus, now a pandemic, is highly contagious, and can be transmitted by asymptomatic but infected individuals.  Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die.  At Elkton, COVID-19 infections are rampant among inmates and staff, and numerous inmates have passed away from complications from the virus.  Elkton has higher occurrences of infection than most other federal prisons.  Respondents lack adequate tests to determine if inmates have COVID-19.  While the district court’s findings are based on a limited evidentiary record, its “account of the evidence is plausible in light of the record viewed in its entirety.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir. 1999).  Thus, at this juncture and given our deferential standard of review on motions to stay, “[t]he district court’s choice between two permissible views of the evidence cannot . . . be clearly erroneous.” Id.

Prior related posts:

May 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 04, 2020

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

SCOTUS wastes no time taking up new case to address whether new Ramos jury unanimity rule is retroactive

In the US Supreme Court's Sixth Amendment unanimous jury ruling a couple of weeks ago, Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here, basics here), a couple of the Justices already started debating whether the ruling would be give retroactive effect.  Interestingly, this new SCOTUS order list includes this new certiorari grant revealing that the Justices were eager to formally take up this issue before lower courts even had a chance to try to hash it out:

EDWARDS, THEDRICK V. VANNOY, WARDEN

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

Long-time readers should know that I generally view getting matters "right" in the criminal justice system as much more important than keeping that which is wrong "final."  (This is especially true  in the sentencing area as I explained in "Re-Balancing Fitness, Fairness, and Finality for Sentences" a few years ago.)  I always believe it especially important for new substantive laws and rules to be retroactive, and Ramos is obviously "just" a procedural rule.  But I have long hoped that the Supreme Court's Teague doctrine for limiting the retroactivity of procedural rules would someday identify the long-discussed "watershed" procedural rule that implicates the fundamental fairness and accuracy of the trial and thus should be fully retroactive.  See 489 U. S. 288, 311-312 (1989) (plurality opinion).  I suspect and hope jury unanimity might prove to be just such a rule (though I am certainly not holding my breath in light of the opinions in Ramos).

Prior related posts:

May 4, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)