Tuesday, December 21, 2021

A deep dive into extreme sentences in the Pelican State

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 20, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Among the poll’s findings:

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

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

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

Some of many prior related posts:

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

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

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

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

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

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

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

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

Friday, December 17, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 16, 2021

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

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

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

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

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

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

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

Wednesday, December 15, 2021

"Would an independent commission solve the clemency backlog?"

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

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

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

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

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

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

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

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

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

Prior recent related post:

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

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

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

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

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

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

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

Tuesday, December 14, 2021

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Monday, December 13, 2021

"Prison Reform Should Be a Bipartisan Issue"

This title of this post is the headline of this effective Wall Street Journal commentary authored by Marc M. Howard. I recommend the full piece and here are excerpts:

I was happy to learn that Rep. Marjorie Taylor Greene and several other members of Congress visited the District of Columbia Jail recently.  And I was flattered that her ensuing report, “Unusually Cruel,” quoted from my book and even borrowed its title.  As someone who frequently visits prisons, I believe it is vital that people see firsthand the conditions of incarceration around the country — and realize the humanity of those behind bars.

Mrs. Greene’s report focuses on the “inhumane” conditions in which the Jan. 6 defendants are being held. “Cells in the January 6 wing of the CTF were extremely small, composed of a single toilet, sink and a small bed cot,” she notes. “The walls of the rooms had residue of human feces, bodily fluids, blood, dirt and mold. The community showers were recently scrubbed of black mold — some of which remained.”  The report adds that inmates said they “did not have access to their attorneys, families or proper nutrition.”

These observations match the standard story of incarceration in America, and they should lead people to reflect on how they would feel if they or a loved one were held in such conditions.  This isn’t an abstract exercise, as 45% of Americans have had an immediate family member incarcerated.

Deplorable physical conditions are shockingly common, with prisons and jails across the country characterized by filth, violence, overcrowding and lack of privacy.  Most correctional facilities allow limited movement and communication, scant access to work or educational programming, and hostile and dehumanizing relations with staff....

Across the country, prison reform has been a largely bipartisan issue for nearly a decade.  The First Step Act of 2018 passed overwhelmingly in both houses of Congress and was signed by President Trump.  It was the most significant federal criminal-justice reform aimed at reducing incarceration in the past 50 years.  States led by Republicans (including Texas, Mississippi, Georgia, Louisiana and South Carolina) and Democrats (New York, New Jersey, Connecticut and California) have made conscious efforts to reduce their incarceration levels.

Although the events of Jan. 6 have become polarizing in American politics, the situation at the D.C. Jail has created an opportunity for both sides to appreciate the disturbing realities of prison in America.  I hope Mrs. Greene and others on the right who are appalled by the physical conditions they witnessed will become advocates for reforming the laws and policies that support a system that currently treats prisoners inhumanely.

I also hope that people on the left — including those who already favor prison reform but view it primarily through a racial-justice lens — will resist their own vindictive impulses, stop demonizing their political opponents, and support Jan. 6 defendants’ right to proper treatment.

December 13, 2021 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Notable new report from For The People about early implementation of California’s Prosecutor-Initiated Resentencing law

I just learned about this notable new report from For The People under the title "Prosecutor-Initiated Resentencing: California’s Opportunity to Expand Justice and Repair Harm."  Here is part of the report's executive summary and key findings:

Until relatively recently, California was home to the largest prison system in the U.S. From 1975 to 2006, California’s prison population saw an 800% increase, from less than 20,000 people to 163,000, as the state built 22 of its 34 prison facilities.  Though California has enacted a series of reforms in the last decade, over 99,000 people remain incarcerated in the state’s prisons. Many of these people, disproportionately people of color, are serving excessively long sentences and could be released without posing a threat to public safety.

California’s Prosecutor-Initiated Resentencing (PIR) law (AB 2942), championed by For The People’s founder and passed in 2018, gives District Attorneys (DAs) a groundbreaking tool to directly and immediately redress the harm caused by mass incarceration and excessive sentences.  The law allows DAs to take a “second look” at past sentences that may no longer be in the interest of justice and ask the court to recall sentences and resentence people, resulting in their earlier release and reunification with family and community. 

This report looks at how specific policies led to mass incarceration in California, reviews the evidence in support of releasing people who no longer need to be incarcerated, examines the opportunity for PIR, and shares the real impacts of resentencing on people who have already been released. Finally, the report offers recommendations on implementation and opportunities for further reform.

This press release provides a partial accounting of "key report finding":

And this Washington Post opinion piece by Hillary Blout, a former prosecutor who founded For The People, makes the case for Prosecutor-Initiated Resentencing (PIR) under the headline "Thousands of incarcerated people deserve to come home. Here’s how prosecutors can help." Here are excerpts with links from the original:

Beyond California, For The People has supported the passage of three laws just like the original. Today, IllinoisOregon and Washington state have all passed laws giving prosecutors the ability to revisit old cases — and more states, including New YorkMinnesota and Massachusetts, are considering PIR bills.

As this movement spreads, many may wonder, “Is this safe?”  The myth goes that long sentences are crucial to increasing public safety.  But research has shown that the length of a sentence doesn’t actually have the effect of deterring more crime.  Research also shows that people age out of crime, and that recidivism rates decline with age and are the lowest among people who have served the longest sentences for serious crimes.

The PIR process includes a meticulous review of an incarcerated person’s history, rehabilitation and in-prison behavior, as well as robust reentry planning. It also considers mitigating factors from the person’s childhood and develops safeguards for the future.  This helps ensure that our communities will be protected and even benefit from the person’s return home.

Regular readers know I am a big fan of second-look sentencing mechanisms, and some may recall that many years ago I gave a talk arguing that prosecutors should be much more involved in reviewing past sentences, which got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  So I am extremely pleased to see this idea in actual practice in a growing number of jurisdictions. 

December 13, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Heritage Foundation and NACDL release "Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later"

This NACDL news release discusses a notable new report on a depressingly old problem with federal criminal law (and sentencing).  Here are excerpts from the release, with links from the original:

The Heritage Foundation and the National Association of Criminal Defense Lawyers (NACDL) today released Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later. The report is co-authored by Zack Smith, Heritage legal fellow, and Nathan Pysno, director of economic crime and procedural justice at NACDL.

This new report — a study of the 114th Congress — revisits a 2010 joint report by The Heritage Foundation and NACDL: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which found that during the 109th Congress, of the 446 non-violent, non-drug-related criminal offenses proposed, 57% lacked an adequate guilty-mind requirement.

The new study finds that Congress still regularly introduces bills with new criminal provisions that contain mens rea requirements that are not sufficiently protective. In fact, 42% of the bills analyzed had criminal intent requirements that were considered inadequate.

Ensuring an adequate mens rea provision is included in statutes and regulations that create criminal offenses is critical. The average person is likely unaware of the vast majority of these crimes and may have no effective notice whatsoever that his or her conduct may be prohibited. It is difficult to imagine how the average person could be expected to “know” the law when no one, including our lawmakers and the U.S. Department of Justice, knows how many federal crimes are actually on the books.

As explained in this new report’s foreword, co-authored by former Attorney General Edwin Meese III and Global CEO of Fair Trials and former NACDL Executive Director Norman L. Reimer:

“The findings of this new report, Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later, are encouraging, but show that further progress is needed. We hope that Representatives, Senators, their staff members, and anyone else who reads this new report take its suggestions seriously. Fostering awareness of the problem of inadequate criminal intent requirements in criminal laws is the first step toward principled reform. Taking appropriate action is the next step.”...

As set forth in this new report’s conclusion:

“Once again, [The Heritage Foundation and NACDL] urge legislators to seriously consider and to adopt the recommendations made in the report, as well as those in the original report. When Congress makes new criminal laws, it should prioritize clear drafting of new criminal provisions and use standardized mens rea terminology consistently across those new statutes.  Each chamber of Congress should refer statutes that create new crimes to its respective judiciary committee, where those committees should consider the appropriate mens rea, providing for defenses, and opportunities to cure in appropriate circumstances.  Similarly, Congress should consider enacting default mens rea legislation. Finally, Congress should require that the number of federal crimes currently on the books be counted.”

Without Intent Revisited: Assessing the Intent Requirement in Federal Criminal Law 10 Years Later is available at: www.heritage.org/without-intent-revisited and www.nacdl.org/WithoutIntentRevisited.

The 2010 joint report by the Heritage Foundation and NACDL – Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law – is available at: www.heritage.org/crime-and-justice/report/without-intent-how-congress-eroding-the-criminal-intent-requirement and www.nacdl.org/withoutintent.

December 13, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Sunday, December 12, 2021

Two new NPR pieces spotlight frustrations with Biden Administration among criminal justice reform advocates

This weekend has brought these two versions of NPR coverage of a topic familiar to readers of this  blog, namely the failure to see much tangible criminal justice reform action from the Biden Administration so far:

"Criminal justice advocates are pressing the Biden administration for more action"

"Activists wanted Biden to revamp the justice system. Many say they're still waiting"

Here are excerpts from the second piece:

People working to overhaul the criminal justice system say they're frustrated with the Biden administration after they've waited nearly a year for the White House to take major steps on clemency and sentencing reform. "I think we're at a point where we're saying, mere lip service isn't enough," said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. "We want to see some concrete action."

For them, concrete action could include granting clemency to the few thousand people who were released to home confinement by the Trump administration at the start of the pandemic. President Biden could ensure those people remain free with the stroke of a pen. But he hasn't done that yet, despite months of pressure....

Michael Gwin, a White House spokesman, told NPR in a written statement that the president has taken steps to reform the system "since his first day in office." "This includes restoring the Department of Justice's Office for Access to Justice, implementing new restrictions on chokeholds and no-knock warrants for federal law enforcement, ending contracts with private detention facilities, and expanding access to re-entry services for formerly incarcerated individuals," Gwin said.

The advocates say they're happy to give credit where it's due.  They praised the Justice Department for rescinding a Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And they're happy the DOJ has launched four big civil rights investigations of police departments.

But they've also taken note of this fact: the federal prison population has increased by some 5,000 people during Biden's tenure, according to Nazgol Ghandnoosh, a researcher at the Sentencing Project....  While homicides and shootings have increased in many parts of the country, the vast majority of those crimes are handled by state and local authorities, not the federal government.  Most people in federal prison are there for breaking drug or immigration laws, Ghandnoosh said.

Ghandnoosh had expected to see more than "small tinkering" by the new team in Washington. "We would expect to hear from the attorney general and the president very vocal and unequivocal support for federal sentencing reform that's being considered right now and that could help to give those initiatives an important boost," she added.

Another criticism is about personnel.  The White House hasn't taken any action to fill vacancies on the Sentencing Commission, which sets federal sentencing guidelines for many crimes.  "In the past, some of the best reforms [that] have been achieved in the last 10 years have been at the Sentencing Commission and they haven't even nominated people to fill this vacant body," said Ring of FAMM.

Meanwhile, key allies of the White House, including Senate Judiciary Committee Chairman Dick Durbin, D-Ill., are going public with their demand that the Justice Department fire the head of the federal prison system.  They say the Federal Bureau of Prisons mismanaged the pandemic and that there are several other serious problems in the system.

Democrats control both chambers of Congress with small majorities.  But the administration hasn't used the bully pulpit to promote the EQUAL Act, a bill that would equalize the penalties for crack and powder cocaine.  Those laws have punished Black people more harshly than white people for decades for essentially the same crime.

December 12, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (20)

Accounting for the first 50 sentences imposed on January 6 rioters

This new CNN piece, headlined "After 50 rioters sentenced for January 6 insurrection, a debate rages over what justice looks like," reports on a new analysis of sentences for the high-profile crimes that kicked off 2021.  I recommend the lengthy piece in full, and here are parts of how it gets started:

Of the 50-plus defendants who have been sentenced for their role in the January 6 attack on the US Capitol, fewer than half were sent to jail for their crimes. Most received an assortment of lesser penalties, including brief terms of house arrest, a couple years of probation, four-figure fines or court-ordered community service, according to a CNN analysis.

The milestone of 50 sentencings was hit on Friday, a busy day in court, with six hearings on the schedule. Four defendants got probation Friday, including a pair of veterans from Wisconsin, while one man who stole a beer from House Speaker Nancy Pelosi's office got 20 days in jail.

As federal prosecutors have brought cases against nearly 700 rioters, a heated debate has emerged over what justice should look like for such an unprecedented assault on democracy. This debate has raged on social media and in the halls of Congress. It has also played out among the two dozen judges handling the cases at the federal courthouse in Washington, DC.

After 50 sentencings, a split has developed on the bench: One group of judges has handed down stiffer punishments to rioters, including time behind bars. While a more skeptical group of judges have rebuffed the Justice Department and instead imposed fines and probation, which means the rioters will avoid jail but stay under government supervision for years to come.

This dynamic won't last forever -- this initial wave of guilty pleas and sentencings will eventually be followed up by dozens of more serious felony cases with longer prison terms. But for now, the dizzying array of outcomes has caused some headaches. Judges are questioning the department's approach to January 6, and politicians from both sides have fanned the flames....

These wings of the court don't fall along political lines. There are GOP-appointed skeptics, and some Democratic appointees handing down tough punishments. But the dynamic is nuanced. This has also forced partisan players on both sides to contort their ideological views to fit the moment.

Democratic lawmakers and activists are calling for more incarceration and want judges to throw the book at rioters, while many Republican officials and right-wing influencers have become newfound supporters of improving jail conditions for what they call "political prisoners."

Some of many prior related posts:

UPDATE: I just notice this recent AP article discussing some of the sentencings for some of the January 6 crimes under the headline "Capitol rioters’ social media posts influencing sentencings." Here is how the extended piece gets started:

For many rioters who stormed the U.S. Capitol on Jan. 6, self-incriminating messages, photos and videos that they broadcast on social media before, during and after the insurrection are influencing even their criminal sentences.

Earlier this month, U.S. District Judge Amy Jackson read aloud some of Russell Peterson’s posts about the riot before she sentenced the Pennsylvania man to 30 days imprisonment. “Overall I had fun lol,” Peterson posted on Facebook.  The judge told Peterson that his posts made it “extraordinarily difficult” for her to show him leniency.

“The ’lol’ particularly stuck in my craw because, as I hope you’ve come to understand, nothing about January 6th was funny,” Jackson added.  “No one locked in a room, cowering under a table for hours, was laughing.”

Among the biggest takeaways so far from the Justice Department’s prosecution of the insurrection is how large a role social media has played, with much of the most damning evidence coming from rioters’ own words and videos.

December 12, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (12)

Saturday, December 11, 2021

New Harvard Law Review article details "The Incoherence of Prison Law"

The new issue of the Harvard Law Review has this notable new article authored by Justin Driver and Emma Kaufman and titled "The Incoherence of Prison Law."  Here is its abstract:

In recent years, legal scholars have advanced powerful critiques of mass incarceration.  Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality.  Scholars have said much less about the law that governs penal institutions.  Yet prisons are filled with law, and prison doctrine is in a state of disarray.

This Article centers prison law in debates about the failures of American criminal justice.  Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure.  We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions.  To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation.  We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.

Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons.  This Article explains how outdated tropes have narrowed prisoners’ rights and promoted the country’s dependence on penal institutions. It links prison myths to the field’s central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment.  And it argues that courts must abandon that doctrine — and attend to the realities of prison — to develop a more coherent theory of prisoners’ constitutional rights.

December 11, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Friday, December 10, 2021

FIX Clemency Act introduced in US House seeking to fix broken federal clemency process

As reported in this new Insider article, headlined "Congressional progressives back new bill to radically change the 'broken' clemency system," today a notable new federal bill was introduced seeking to fix the federal sentencing process.  Here are the basics:

The "FIX Clemency Act," introduced Friday by Rep. Ayanna Pressley, a Democrat from Massachusetts, calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

"Clemency works, but the current system is broken and denies thousands of people the chance of redemption and justice," Pressley told Insider. "It is long overdue that the president uses his clemency authority to address the generations of systemic injustices that have created the mass incarceration crisis," she said, arguing that her bill was a "critical" part of that effort.

The proposal, endorsed by the ACLU and the NAACP, comes as advocates of clemency reform are increasingly frustrated with the administration. Since taking office, President Joe Biden has not used his clemency power — a fact that is not unusual at this point in a new presidency, but a disappointment to those who see it as an area where the White House can immediately and unilaterally reform the criminal justice system....

The bill introduced Friday would eliminate the Office of the Pardon Attorney, transferring its functions to the new board, and guarantee that all requests for pardon or commutation be reviewed within 18 months. Members of the new panel would include a representative from the Department of Justice, but also someone who has worked for a federal public defenders office.

During the 2020 campaign, a "unity" task force composed of Biden supporters and backers of Vermont Sen. Bernie Sanders recommended the creation of an independent clemency review board. The proposal is also in the Democratic Party's platform.

So far, however, the administration has given no indication that it endorses the reform. And its liberal critics say the federal criminal justice system is headed in the wrong direction. "2021 marks the first increase in 8 years of our federal prison population — that's nearly a decade of progress that has been wiped out," Rep. Cori Bush, a Democrat from Missouri and cosponsor of the new legislation, said in a statement....

"Fueled by the failed war on drugs, the mass incarceration epidemic that our nation faces has ruined lives, families and communities," Rep. Hakeem Jeffries, a New York Democrat who leads the House Democratic Caucus, said in a statement. "Our broken clemency system only deepens this pain, and we must transform it in a just, equitable and transparent manner."

Via Rep. Presssly's official website, here are links for the Bill Text and Bill Summary for this quite interesting and important bill.  This press release from that office, titled "Bill Establishes Independent U.S. Clemency Board to Review Applications, Transmit Recommendations Directly to President," starts this way:

Today, Congresswoman Ayanna Pressley (MA-07), along with Congresswoman Cori Bush (MO-01), Congressman Hakeem Jeffries (NY-08) and grassroots advocates, unveiled the Fair and Independent Experts in Clemency (FIX Clemency) Act, historic legislation to transform our nation’s broken clemency system and address the growing mass incarceration crisis. 

December 10, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Thursday, December 09, 2021

Another reminder that Prez Biden has so far decided to forget using his clemency powers

The headline of this new Insider article, "Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated," captures the themes of the full piece effectively.  Regular readers will not find anything too new in this article, but it still serves as a useful review of where federal clemency matters stand as we approach the close of 2021.  I recommend this lengthy piece in full, and here are a few excerpts:

Nkechi Taifa, an attorney, activist, and leader of the progressive Justice Roundtable, ... [had an] early December meeting with Susan Rice, director of the Domestic Policy Council, and staff from the Office of the White House Counsel, [where] she implored the administration to act now [on clemency].

More than 7,700 federal inmates are currently on home confinement, granted release from prison on the grounds that they pose no security threat and are at a heightened risk of suffering severe complications from COVID-19. When the public health emergency is declared over, they could be forced to return. Leading Democrats, including Senate Whip Dick Durbin of Illinois, have argued it would be an injustice to send them back, urging the White House to consider granting clemency en masse.

In the meeting, White House staff appeared to agree, Taifa said. That's not the problem. "Their rhetoric says that they understand what we're saying, and that they're working on it," she said. The issue is the conversation is taking place in December. "If it's going to take this long for a first step, how long is it going to take for the rest?"...

"What we've got is this bureaucratic morass," Mark Osler, a former federal prosecutor, said in an interview. "There's seven levels of review, one after the other, and the first four levels are all in the Department of Justice, which of course is conflicted because they're the ones who sought the sentence in the first place."

The first step is the Office of the Pardon Attorney, which is currently led, on an acting basis, by Rosalind Sargent-Burns, a career department lawyer former Attorney General William Barr appointed. They then present their recommendations on who should get clemency to the deputy attorney general's office, where another staffer reviews it and passes it on — maybe — to their boss. Then it goes to the staff for the White House counsel, then the actual counsel, then an aide to the president and then, if all goes well, to Biden himself.

The president could, at any time, bypass this process. Trump did when he pardoned Arpaio and his other allies, such as Roger Stone and Steve Bannon. If anything, Osler, now a professor at the University of Saint Thomas, told Insider he thinks Biden is too committed to the way things were. It's one thing to respect the Justice Department's career bureaucracy when it comes to deciding who deserves prosecution but, he said, "it doesn't make sense in terms of clemency."

A White House official told Insider the president is "exploring the use of his clemency power" for non-violent drug offenders who were moved to home confinement at the start of the pandemic, a transfer authorized by the March 2020 CARES Act — specifically, those with fewer than four years left on their sentences (one activist who has engaged the White House expects those with less than two years remaining will also be excluded).  "At the same time," the official said, Biden "continues to consider requests for pardon and commutation that are submitted in the ordinary course."...

The Department of Justice declined to comment on how many petitions for clemency have received favorable recommendations within the department or have been referred to the White House. It is impossible to say for sure, then, how much the delay in granting pardons is due to bureaucracy or stalling by political actors.

But sticking with the opaque status quo is itself a political decision — the president could unilaterally discard it — and it's a disappointment, if not a surprise, to people like Osler. He's not expecting big things.  "I haven't heard anything from the administration that gives me hope," he said.

Some of many prior related posts:

December 9, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, December 08, 2021

The Sentencing Project releases "Successes in Criminal Legal Reforms, 2021"

Nicole Porter at The Sentencing Project has authored a short report reviewing state-level legislative criminal justice reforms under the title "Successes in Criminal Legal Reforms, 2021." This webpage has a link to the full four-page document, and it sets up the report's coverage this way:

The United States continues to lead the world in incarceration given that over 6.3 million persons are under correctional control.  More than 2.1 million are in prison or jail, and 4.4 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 70-100 million have a criminal record. The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.

Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  This briefing paper highlights key reforms undertaken in 2021 prioritized by The Sentencing Project.

December 8, 2021 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, December 07, 2021

"'No idea whether he's Black, White, or purple': Colorblindness and cultural scripting in prosecution"

The title of this post is the title of this notable new research authored by R. R. Dunlea and just published in the journal Criminology.  Here is its abstract:

Prosecutors maintain immense power over criminal case processing.  Yet, they have not historically been a major target for reforms designed to foster equality and reduce racial disparity in criminal justice outcomes.  Using in-depth interviews with 47 line prosecutors, this study explores how prosecutors think about race in criminal justice, and what they believe their role should be in addressing racial disparities. 
Results show that prosecutors broadly embrace a colorblind approach to prosecution and argue that race should be disregarded in case processing.  Their support for colorblind prosecution is reinforced by race-neutral cultural scripts that can be linked to the social and operational realities of prosecutors’ work environment.  These findings suggest that efforts to improve fairness in case processing will be more effective if they are accompanied by widespread prosecutorial culture change.  Such efforts may also benefit from the consideration of structural features of the prosecutor's office that currently lead line agents to embrace colorblindness and reject a larger role in alleviating racial disparities.

December 7, 2021 in Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Monday, December 06, 2021

Noting differing perceptions of whether prison time is too long or too short or just right in the US

FT_21.11.17_TimeInPrison_1Over at the Pew Research Center, John Gramlich has this interesting new piece under the headline "U.S. public divided over whether people convicted of crimes spend too much or too little time in prison."  The graphic reprinted here captures the heart of the story, and here is some of the text (with links from the original):

Americans are closely divided over whether people convicted of crimes spend too much, too little or about the right amount of time in prison, with especially notable differences in views by party affiliation, ideology, race and ethnicity.

Overall, 28% of U.S. adults say people convicted of crimes spend too much time in prison, while 32% say they spend too little time and 37% say they spend about the right amount of time, according to a Pew Research Center survey of 10,221 adults conducted in July 2021.  The question was asked as part of a broader survey examining differences in Americans’ political attitudes and values across a range of topics.  The survey asked about prison time in a general way and did not address penalties for specific crime types.

Democrats and Democratic-leaning independents are much more likely to say people convicted of crimes spend too much time in prison than to say they spend too little time behind bars (41% vs. 21%).  The reverse is true among Republicans and Republican-leaning independents: 44% of Republicans say people convicted of crimes spend too little time in prison, while 14% say they spend too much time behind bars.  Around a third of Democrats and Democratic leaners (35%) and a slightly higher share of Republicans and GOP leaners (39%) say people convicted of crimes spend about the right amount of time in prison.

Views differ by ideology within each partisan group.  Liberal Democrats are more likely than conservative and moderate Democrats (54% vs. 30%) to say convicted people spend too much time in prison.  Conservative Republicans are more likely than moderate and liberal Republicans (49% vs. 35%) to say people convicted of crimes spend too little time in prison.

Democrats who describe their political views as very liberal and Republicans who describe their views as very conservative stand out even more.  Very liberal Democrats are much more likely than Democrats who describe their views as simply liberal (70% vs. 47%) to say convicted people spend too much time in prison.  And very conservative Republicans are more likely than Republicans who describe their views as simply conservative (56% vs. 47%) to say people convicted of crimes spend too little time in prison.

Attitudes about many aspects of the U.S. criminal justice system differ by race and ethnicity, as previous Pew Research Center surveys have shown, and a similar pattern appears in views of time spent in prison.  Black adults (40%) are more likely than White (26%), Asian (26%) and Hispanic adults (25%) to say people convicted of crimes spend too much time in prison.  Conversely, White adults (36%) are more likely than Hispanic (28%) and Black adults (17%) to believe that convicted people spend too little time behind bars.  Around a third of Asian adults (34%) also say convicted people do not spend enough time in prison, but their views are not statistically different from those of White and Hispanic adults.

Among Democrats, similar shares of Black and White adults say prisoners spend too much time behind bars, even as Black and White Democrats express different views on some other survey questions related to criminal justice.  Black Democrats, for example, are modestly more likely than White Democrats to favor increased funding for police in their area, according to a September Pew Research Center survey.

December 6, 2021 in Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (7)

SCOTUS to wrap up 2021 oral arguments with two more criminal cases

With big cases concerning abortion (Hobbs) and gun rights (Bruen), the start of the SCOTUS Term has had plenty of big arguments involving big issues that probably could be viewed through a criminal justice lens.  And, with arguments on the Boston Marathon bomber's sentence (Tsarnaev) and the right to a pastor in the execution chamber (Ramirez), the death penalty has also been on the SCOTUS docket.  And, of course, what would a SCOTUS Term be without the requisite ACCA case (Wooden) and a case dealing with habeas procedure (Davenport).

But my SCOTUS criminal justice cup cannot run over, and thus it is worth nothing that the Justice have two more criminal cases on the docket for its last two days of scheduled oral argument for 2021.  With thanks to SCOTUSblog, here are the basics:

US v. TaylorNo. 20-1459, to be argued on Tuesday, December 7, 2021 

Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
 
 
Shinn v. RamirezNo. 20-1009, to be argued on Wednesday, December 8, 2021:
 
Issue(s): Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

December 6, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Working through challenges facing CARES home confinement cohort

Charles Burnham and Jonathan Knowles have this new Law360 piece, headlined "Addressing Prison Risk After CARES Act Home Confinement," that talks through the possibilities (and challenges) for individuals placed on home confinement pursuant the CARES Act facing a potential future return to prison. Here are excerpts:

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote. Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach. Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends. It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement.  Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them.  One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement. Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act. The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action.  Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement.  Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom.  Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP.  Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence.  In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release....

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement.  They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Some of many prior related posts:

December 6, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

When exactly in "early 2022" might we expect Prez Biden's nominees to the US Sentencing Commission?

The question in the title of this post is prompted by this new Law360 article, which discusses the quorum-less status of the US Sentencing Commission and includes a prediction from the last remaining Commissioner as to when new USSC nominations may be forthcoming. The piece is headlined "Biden's Inaction Keeps Justice Reform Group Sidelined," and here are a few excerpts:

In November, Reps. Kelly Armstrong, R-N.D., and Jamie Raskin, D-Md., sent a letter to Biden urging him to fill vacancies on the Sentencing Commission, saying that the commission's inability to issue sentencing guidelines for the First Step Act could result in "uneven application of the law."

"It is imperative that the vacancies are expeditiously filled so the commission can continue its work to improve the federal criminal justice system," the pair said in the Nov. 22 letter.

Armstrong told Law360 that he sent the letter to Biden because having the commission's input would be beneficial as the Senate considers advancing the EQUAL Act, or Eliminating a Quantifiably Unjust Application of the Law Act — a proposed law that would completely eliminate sentencing disparities between crack and powdered cocaine offenses.  The bill has passed in the House.

"Nobody's ever lost an election being tough on crime, so if you want reasonable smart policy changes, you need experts to give you the advice, because then, you can utilize that, and you don't take as much political heat," Armstrong said about the Sentencing Commission.

Congress is currently considering several sentencing reform bills in addition to the EQUAL Act.  Though lawmakers are running out of time to pass the proposed laws with its winter recess scheduled to start Dec. 11.  Four of the proposed sentencing reform bills — the Smarter Sentencing Act, the Preventing Unfair Sentencing Act, the RAISE Act and the Ending the Fentanyl Crisis Act — specifically call on the Sentencing Commission to review and revise its sentencing guidelines, if necessary to comply with the legislation.  However, the commission wouldn't be able to comply with these directives as long as it lacks a quorum.

A White House spokesperson did not respond to a request for comment about why Biden hasn't nominated commissioners for the Sentencing Commission yet or when he will announce his nominees.

Breyer, the sole remaining commissioner, told Law360 that he has been in contact with the White House and believes it is currently vetting candidates. He said that he is hoping for a slate of nominees in early 2022.  The White House is "certainly overworked, but I still think that there is some priority in getting this taken care of," Breyer said.

If there truly was "some priority" in staffing the US Sentencing Commission, I think we would have and could have already seen some USSC nominees now 11 months into the Biden Administration.  But I suppose this setting justifies the old saying "better late than never." 

I sincerely hope Judge Breyer's prediction of "nominees in early 2022" means sometime in January or February.  The process of Senate confirmation likely takes a few months even under the best of circumstances, and the prospect of confirmations would seem to diminish as we get closer to the midterm elections.  So even uncontroversial nominations made in January might not result in a full and functioning Commission until Spring 2022.  I fear later and/or controversial nominees could mean we do not get a full and functioning Commission at all in 2022.     

A few of many prior recent related posts:

December 6, 2021 in Criminal justice in the Biden Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (15)

Saturday, December 04, 2021

Fourth Circuit panel finds probation sentence for abusive police officer procedurally and substantively unreasonable

I just saw a notable Fourth Circuit per curiam panel ruling which was handed down on Thanksgiving Eve.  The (unpublished) opinion in US v. George, No. 19-4841 (4th Cir. Nov. 24, 2021) (available here), gets started this way:

A jury convicted Robert Michael George, a former sergeant with the City of Hickory Police Department, of using objectively unreasonable force against a pretrial detainee, Chelsea Doolittle, depriving her of the constitutional right to due process of law, in violation of 18 U.S.C. § 242.  The presentence report calculated an advisory guidelines sentencing range for George’s crime of 70 to 87 months of imprisonment, but the district court sentenced him to a downward variance term of four years’ probation.  The Government appeals, arguing that George’s sentence is procedurally and substantively unreasonable. Because the district court grounded its reasoning for the chosen sentence in conclusions contrary to the evidence and the jury’s verdict, we cannot uphold the sentence as either procedurally or substantively reasonable.  Accordingly, we vacate the sentence and remand to a different judge for resentencing.

Here are some passages toward the end of a fairly lengthy opinion in George:

In its reasoning, the district court relied heavily on its view, counter to the weight of the evidence and George’s conviction, that the incident was “almost accidental.”  Through the prism of that impermissible belief, the district court determined that the Guidelines range, reflecting the appropriate sentence for an officer that willfully deprives someone of their constitutional rights, did not apply to George because he was not in that category of offender.  Other circuits have vacated sentences as substantively unreasonable in instances in which the trial court took an impermissible view of the facts, and that is the predominant reason for our holding as to substantive reasonableness today....

Further, the district court gave excessive weight to its favorable perceptions of George as a former police officer, and in turn the post-conviction consequences for George, dismissing other considerations set forth in the Guidelines.  However, “a defendant’s status as a law enforcement officer is more akin to an aggravating as opposed to a mitigating sentencing factor, as criminal conduct by a police officer constitutes an abuse of public position.”  United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000).  Rather than acknowledge an abuse of public trust, the court relied heavily on its positive perception of George as a former law enforcement officer in its discussion of the first and second § 3553(a) factors, failing to significantly weigh the seriousness of the crime.  As to the goals of the § 3553(a) factors to “promote respect for the law,” “provide just punishment,” “afford adequate deterrence”, and “protect the public,” the court spoke first and foremost of the “total life changes to Mr. George,” enumerating collateral consequences, including George’s loss of his job and pension, as sufficient deterrent to justify the variance. J.A. 512.  But such outcomes are common in § 242 cases and do not justify this significant variance to a probationary sentence.  Indeed, “it is not unusual for a public official who is convicted of using his governmental authority to violate a person’s rights to lose his or her job and to be barred from future work in that field.”  Koon, 518 U.S. at 110.  That reasoning does not provide the “significant justification” necessary for such a substantial departure.  Gall, 552 U.S. at 50.

December 4, 2021 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, December 02, 2021

Split Florida Supreme Court upholds imposition of maximum sentence based in part on defendant's claim of innocence

Via a lengthy divided ruling, the Florida Supreme Court handed down some interesting opinion today in Davis v. Florida, No. SC19-716 (Fla. Dec. 2, 2021) (available here).  Because the various judges fight over how to characterize the case and the ruling, I will just reprint the words of the leading opinions.  First the majority, via Chief Justice Canady:

We accepted jurisdiction to answer the certified question, but because the district court did not pass upon the entirety of the question as framed, we first rephrase it based on the specific circumstances presented by this case: 

DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE SENTENCING HEARING, VIOLATE THE DEFENDANT’S DUE PROCESS RIGHTS BY CONSIDERING THE DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR HIS ACTIONS?...

We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. Thus, we answer the rephrased question in the negative and approve the result in the decision on review.

Now the chief dissent via Justice Polson:

I dissent from the majority’s decision holding that a trial court can punish a defendant for his lack of remorse during a sentencing proceeding.  This result is inconsistent with our precedent interpreting article I, section 9 of the Florida Constitution, the consensus among the district courts of appeal, and has no basis in our statutory sentencing scheme. Showing remorse is admitting you did something wrong — an admission of guilt.  And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt.  Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination.  Accordingly, I would hold that a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.

Notably, more two decades ago, the US Supreme Court held Mitchell v. US, 526 U.S. 314 (1999), that it was unconstitutional to use "petitioner’s silence against her in determining the facts of the offense at the sentencing hearing."  Presumably that ruling in part explains why the majority hear makes much of the defendant voluntarily choosing to allocute and assert innocence.  

December 2, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?

The big news of the law world yesterday was the Supreme Court hearing oral argument in Dobbs v. Jackson Women’s Health Organization, the abortion case out of Mississippi which is viewed as a vehicle for the Justices to reconsider and potentially overrule abortion rights precedents like Roe and Casey.  Based on press reports, as collected here at How Appealing, it sure sounds like a majority of the Justices are prepared to overrule Roe.  Recalling some headlines revealing how abortion laws and debates can implicate crime and punishment issues, I thought it might be useful to flag some press articles of relatively recent vintage which highlight how the overruling of Roe could become of considerable interest for those who focus on criminal justice matters. 

Interestingly, the law at issue in the Dobbs case, Mississippi's Gestational Age Act, appears to only have "Professional sanctions and civil penalties" as the enforcement tools for seeking "to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation."  However, as highlighted by this cursory and abridged review of some press pieces, criminal law and even extreme punishments can be part of an abortion restriction discourse and may become very dynamic if Supreme Court actually does overturn Roe v. Wade:

From Chicago Tribune from April 2018, "Who would be punished for abortion in a post-Roe America?"

From CNN in May 2019, "Alabama doctors who perform abortions could face up to 99 years in prison -- the same as rapists and murderers"

From Texas Tribune in March 2021, "Another Texas GOP lawmaker is attempting to make abortion punishable by the death penalty"

From Slate in September 2021, "Caught in the Net: Interrogated, examined, blackmailed: how law enforcement treated abortion-seeking women before Roe."

From The Guardian in November 2021, "What will US’s future look like if abortion becomes a crime again?

December 2, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (14)

New Senate bill to add defender ex officio position to US Sentencing Commission

As detailed in this press release from earlier this week, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL) [have] introduced the Sentencing Commission Improvements Act, legislation that would for the first time add an ex officio member with a public defender background to the U.S. Sentencing Commission."  Here is a link to the short bill, and here is more from the press release:

Currently, the Commission consists of seven members from both political parties appointed by the President and two ex officio, nonvoting members, the Attorney General or a designee and the U.S. Parole Commission chair. However, unlike the majority of state sentencing commissions, the federal Commission lacks a representative from a public defender background who would provide an essential perspective on the criminal justice system. 

“The federal Sentencing Commission was created to be fair, impartial, and capable of providing evidence-driven improvements to our sentencing system, which is fraught with disparities,” said Senator Booker. “Adding a statutory member to the Commission with a public defender background will ensure that the Commission’s ranks include this distinct and essential perspective on our criminal justice system and, thus, bring us one step closer to a more balanced and just system.”

“The U.S. Sentencing Commission is tasked with establishing practices and policies to promote transparency and reduce sentencing disparities, but the Commission is missing a crucial perspective from the federal public defender system. If we hope to improve sentencing policies in America, we must balance the Commission’s membership by adding a nonvoting federal defender,” said Senator Durbin. “The Sentencing Commission Improvements Act will remedy the Commission’s blind spot and move us toward a fairer sentencing process.”

This new Law360 article, headlined "'No-Brainer' Bill Would Add Fed. Defender To Sentencing Body," provides some more background and details.  Here is an excerpt:

A Senate proposal Tuesday would create a new seat on the U.S. Sentencing Commission for former federal defenders, a move experts say would counterbalance the outsize influence that current and former prosecutors have over the currently dormant panel....

New York University professor and former U.S. Sentencing Commission member Rachel Barkow cheered the proposal. "The Department of Justice has a seat at the table — literally — with a DOJ rep attending all the Commission's meetings," she told Law360 in a statement Wednesday. "It would be helpful to have a defender there as well to offer that perspective.  The Commission has always had plenty of people serving as commissioners who were former prosecutors, and public defense experience is equally valuable."

Brian Jacobs, a former New York federal prosecutor who now specializes in white collar defense with Morvillo Abramowitz Grand Iason & Anello PC, called the proposed move a "no-brainer."  "Speaking as a defender — but even wearing my former prosecutor hat — it makes sense to want to have that sort of balanced input," he told Law360....

Without a quorum last year, the commission missed the chance to shape sentencing policy in response to the coronavirus pandemic — something public defenders are particularly equipped to weigh in on, according to Jacobs. "There's no reason there shouldn't be language in the guidelines addressing how much more difficult time in custody is right now," he said, referring to viral outbreaks, remote court snafus, and restrictive prison policies limiting defendants' ability to meet with counsel. "If the sentencing commission were more nimble, you can imagine there would have been a statement in the guidelines themselves."

December 2, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, December 01, 2021

Calling out SCOTUS for failing to take up circuit splits over the federal sentencing guidelines

In this post last month, I noted this notable new paper by Dawinder Sidhu titled "Sentencing Guidelines Abstention," which astutely assails the US Supreme Court for its "refusal to review [circuit] splits involving federal sentencing policy."  I am now pleased to see Dawinder putting forward his important points in this new HIll commentary headlined "The Supreme Court's criminal justice blind spot."  I recommend the full piece and here are excerpts:

A primary role of the Supreme Court is to resolve differences among the federal appeals courts when those courts reach different conclusions on the same questions of law.  But for 30 years, the Supreme Court has refused to perform this essential role when the disagreements concern federal sentencing guidelines.  The court’s inaction has allowed uncertainty and disparities to fester in this critical area of criminal justice....

In [a] 1991 opinion, the court ... added extraneous language [in an early case address a conflict over a guideline that the US Sentencing Commission was in the process of amending], writing that because the commission possessed authority to amend the guidelines in response to interpretive conflicts, the court should be “more restrained and circumspect in … resolving such conflicts.”

Because this language was unnecessary to the disposition of the case, it should have no precedential weight.   At most, this case supports the unremarkable proposition that, when the commission’s amendment process is under way regarding a guideline that triggers a judicial conflict, the court should exercise restraint and allow the commission to complete its amendment process.  The court regularly abstains from interfering with parallel administrative or state proceedings.  Deferring to the commission during the course of a simultaneous amendment process would be consistent with this respect for alternative decisional bodies.

The problem, however, is that the court has refused to hear all guideline conflicts, not just those the commission is actively addressing.  In adopting this broad position, the court has ceded its role of ironing out judicial conflicts to the commission.  As then-Judge Samuel Alito recognized [in this FSR article], “No other federal agency — in any branch — has ever performed a role anything like it.”  Indeed, the court does not forgo consideration of a case when Congress or an administrative agency may one day amend a statute or regulation producing a conflict.

This anomaly has real-life consequences.  This year, Justices Neil Gorsuch and Sonia Sotomayor believed that the court should not hear a sentencing guidelines case, notwithstanding the fact that it raised an “important and longstanding split” among the federal appeals courts. They reasoned that the commission should “address the issue in the first instance.”  But the justices conceded that until the commission resolves the split, “similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced,” with the disparities ranging by a factor of “years” and spanning from a “fixed-term” to a “life sentence.”

This knowingly perpetuated uncertainty and disparity in the federal courts.  To make matters worse, the court did so knowing that the commission has been without a quorum for almost three years. As such, the court punted a conflict to an agency incapable of amending the guidelines or resolving conflicts.  This isn’t the first time the commission has lacked a quorum for a significant period.  Even when the commission is fully functional, it only has the capacity to take on some of the conflicts that exist.  This is not to disparage the commission but to call into question the Supreme Court’s hoisting the responsibility of addressing guideline conflicts onto the shoulders of a regularly shorthanded commission.

Anyone interested in coherence and consistency in criminal justice should be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines.  It is one thing to be discerning in case selection; it is another to step aside altogether from guideline cases that implicate the fair and uniform administration of justice.

December 1, 2021 in Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, November 30, 2021

ACLU sues Biden Administration for data on CARES home confinement cohort

This ACLU press release reports on a notable new lawsuit: "The American Civil Liberties Union and ACLU of the District of Columbia today filed a lawsuit against the Department of Justice and the federal Bureau of Prisons under the Freedom of Information Act, seeking information about the federal government’s potential plan to force people placed on home confinement under the CARES Act back to prison after the pandemic subsides, even if they have followed all requirements of home confinement, been reunited with their families, and successfully reintegrated into society."  Here is more:  

Recognizing the dangers of COVID spread in federal prisons, Congress provided, as part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, that the Bureau of Prisons (BOP) could place incarcerated people in home confinement as a way of reducing the population of crowded prisons and mitigating the virus’ spread.  As a result, BOP has placed more than 34,000 people — including many elderly or medically vulnerable — on home confinement since March 2020.  BOP evaluated every single person and determined that none of them would pose a threat to public safety while on home confinement. While most have now completed their sentences, 7,769 are on home confinement currently. Many have found gainful employment and have reunited with spouses, children, and other loved ones.

In June 2020, the BOP director and medical director testified in the Senate that people released under the CARES Act would be on home confinement “for service of the remainder of their sentences.”  But in the last days of the Trump administration, the Justice Department’s Office of Legal Counsel (OLC) issued a memorandum saying that when the pandemic ends, people on home confinement must be ordered back to prison unless they are in the final months of their sentences, even if they have been completely law-abiding.  Such an order would disrupt their lives and the lives of their loved ones and would destroy the successful efforts they have made to reintegrate into society.

The BOP has not disclosed how many of the 7,769 people currently on home confinement may be forced back to prison. Although the Biden administration has said that the president will consider granting clemency to a subset of this group so that they will not be sent back to prison, he has not yet granted any such petitions.  The ACLU has repeatedly called on President Biden to grant clemency to everyone who is on home confinement under CARES and following the rules.

Under the Freedom of Information Act, the ACLU requested records providing information about people BOP moved to home confinement under the CARES Act. The ACLU also asked for any final DOJ and BOP policies implementing the OLC memorandum.  The government failed to provide the materials by the deadline.  Our lawsuit, filed today in federal court in the District of Columbia by the ACLU and the ACLU of the District of Columbia, asks the court to enforce the law against the Justice Department and the BOP and order them to immediately produce the requested records.

The full complaint is available here

November 30, 2021 in Criminal Sentences Alternatives, Data on sentencing, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

El Chapo's wife sentenced to three years in federal prison (guidelines be damned)

This Vice article provides a thorough accounting of a notable federal sentencing with this rousing start: "Sinaloa Cartel leader Joaquín “El Chapo” Guzmán Loera became infamous for daring jailbreaks in Mexico only to end up serving life in prison in the United States. Now his wife, Emma Coronel Aispuro, has managed to avoid a similar fate."  Here is more from the piece: 

The 32-year-old Coronel was sentenced Tuesday to just three years in prison after pleading guilty earlier this year to charges that she helped her husband run his drug trafficking empire, facilitated one of his prison escapes in Mexico, and violated U.S. sanctions by spending his illicit fortune. She also paid nearly $1.5 million to the U.S. government.

It could have ended much worse for Coronel, who faced up to 14 years for her crimes under federal sentencing guidelines.  Federal prosecutors in Washington, D.C., asked her judge for leniency, calling for her to serve just four years behind bars and fueling speculation that she’d struck a deal to cooperate.

Coronel’s attorneys and federal prosecutors made the case to sentencing Judge Rudolph Contreras that she only played a minimal role in the cartel and that her crimes were committed simply because she was married to El Chapo. “The defendant was not an organizer, leader, boss, or other type of manager,” prosecutor Anthony Nardozzi said. “Rather, she was a cog in a very large wheel of a criminal organization.”

A soft-spoken Coronel addressed the court in Spanish before the judge handed down the sentence, asking for forgiveness and making a plea for leniency so that she could be free to raise her 10-year-old twin daughters, who were fathered by El Chapo....

The light sentence has raised eyebrows among ex-prosecutors who handled similar cases against high-level drug traffickers and their associates.  “Downward departure,” or a sentence below the range called for by federal guidelines, is typically reserved for individuals who agree to assist the government in some capacity, David Weinstein, a former assistant U.S. Attorney in Miami, told VICE News.  “They’re treating her like a cooperator,” said Weinstein, who now works as a defense attorney.  “These are the types of circumstances where people are involved in large-scale drug trafficking conspiracies and are benefiting the kingpin and helping the kingpin. You usually don’t get downward departure unless you’re providing substantial assistance.”

Coronel, who holds dual citizenship in the U.S. and Mexico, was taken into custody by FBI agents on Feb. 22 after arriving at Dulles International Airport near Washington, D.C.  While federal authorities announced that Coronel had been “arrested,” sources familiar with her case told VICE News she was aware of pending charges against her and came to turn herself in.

Coronel has been held since February at a jail in Alexandria, Virginia, and is now expected to be transferred into the federal prison system to serve out her sentence. She will receive credit for time served and could be released in just over two years.

If prosecutors truly believed Coronel had only played a minimal role and was merely El Chapo’s wife, it's unclear why she was even charged in the first place because her prosecution would be a waste of time and resources, according to Bonnie Klapper, a former federal prosecutor in the Eastern District of New York.  Klapper, now in private practice, said Coronel’s sentence “is a very clear demonstration of how prosecutors can manipulate the sentencing guidelines to either punish or reward a defendant.”...

In sentencing Coronel, Judge Contreras noted that putting her behind bars for a long time would do little to dissuade anyone else from joining the Sinaloa Cartel. In fact, he said, there was little indication that prosecuting El Chapo had any impact on the cartel’s operations.  “One can make a plausible argument that even the removal of Guzmán from the conspiracy has not resulted in a reduction of harm to the public,” the judge said. “There appears to be no shortage of replacements to fill the defendant’s slot in the organization.”

Contreras noted Coronel’s “impoverished” upbringing and the involvement of her family members in the drug trade, and indicated that he believed that she was a victim of her circumstances who was very young and impressionable when she married El Chapo. “I hope you raise your twins in a different environment than you’ve experienced to date,” Contreras said in his parting words to Coronel. “Good luck.”

This article is astute to note how this case highlights "manipulation" of the federal sentencing guidelines and sentencing outcomes. Indeed, the Government's sentencing memo in the case showcases how the guidelines can function more like a parlor game than as a steady guide to sensible sentencing.  According to that memo, Coronel's PSR initially "concluded that the Defendant’s applicable Guidelines range in this case was 135 months to 168 months ... [and] neither the Government nor the Defendant objected to this Guidelines calculation."  But, sometime thereafter, the Government decided "that Defendant’s applicable Guidelines range is 57 to 71 months in prison ... [and] Defendant and the Probation Office concur."

In other words, everyone in this case first determined that the guidelines recommended 11+ to 14 years in prison, but then later everyone decided the guidelines recommended less than half that length of time.  And then, guidelines be damned, the government decided to recommend a sentence of 48 months (nine months below the low end of the lower guideline range).  And then Judge Contreras decided that 36 months was a sufficient sentence. 

Of course, one might reasonably expect the guidelines to be a poor "fit" for this kind of unique case with its many unique elements.  But, then again, a quarter century ago in Koon v. US, 518 U.S. 81 (1996), the Supreme Court rightly made this closing observation: "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."

November 30, 2021 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

"Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System"

The title of this post is the title of this new paper authored by Anna D. Vaynman and Mark Robert Fondacaro now available via SSRN. Here is its abstract:

The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process.  This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial.  The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. 

This article argues for the importance of prosecutorial discretion as a potentially valuable tool, analyzes how and why it creates potential for abuse, and provides suggestions for recreating a balance of power.  Overall, the analysis shifts away from blaming the personal characteristics of overzealous prosecutors for the imbalance and focuses on systemic, forward looking administrative and legislative solutions aimed at taking plea bargaining out of the shadows.  The article concludes with specific suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process and recentering a defendant’s constitutional rights within the justice system.

November 30, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Sunday, November 28, 2021

Notable accounting of the "utter failure" of Massachusetts new expungement law

The Boston Globe has this great lengthy new piece about Massachusetts expungement practices headlined "‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few." I recommend the full piece, and here is how it starts:

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life.

But three years later, only a fraction of those who are likely eligible for relief have had their records expunged. Massachusetts Probation Service data suggest that people who were previously arrested for, charged with, or convicted of a crime submitted just 2,186 petitions to expunge their records between January 2019 and July, of which 352 were eventually approved by state judges, or about 16 percent.  And of those 352, probation officials could definitively identify only 17 related to marijuana, a statistic they first began tracking (partially) in January.

While the state could not say exactly how many people are potentially eligible for expungements, advocates insist the pool runs into the tens of thousands.  For example, there were about 68,800 civil or criminal violations for marijuana possession issued in Massachusetts from 2000 through 2013, and 8,000-plus arrests for selling or possessing marijuana each year from 1995 to 2008, according to a Cannabis Control Commission research report and an ACLU analysis.  And cannabis charges are only one of a number of past incidents that can be wiped clean under the law after enough time has passed.

Critics attribute the low numbers of expungements to restrictive eligibility criteria, a lack of outreach to former defendants, disorganized state records, and a lengthy application process that ultimately gives judges wide latitude to reject even seemingly qualified requests with little explanation.

“Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies.  “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

The 2018 law bars the expungement of violent or sexual crimes, and practically any offense committed after the age of 21.  And, importantly, it prohibits anyone with more than one entry on their record from obtaining an expungement, unless the other offenses are motor vehicle violations that resulted in a fine of less than $50.  The only exceptions are special circumstances such as mistaken identity or conduct that is no longer illegal, as with marijuana, which together accounted for just 298 attempted petitions.

It also makes former defendants responsible for learning of the expungement program, determining their eligibility, tracking down the relevant records within the state’s patchwork of police and court filing systems, and submitting them along with a petition to the state probation department.  Probation officials reject the vast majority of expungement petitions they receive (around 79 percent) as ineligible under the law, suggesting there is widespread confusion among applicants about which charges can be cleared.

If an application is cleared by the probation department to go before a judge, the office of the district attorney who originally brought the charges is then given a chance to object.  And even when prosecutors endorse a petition, judges can still reject an expungement request on the grounds it would not be in the “best interests of justice.” Attorneys for former defendants say judges have used that clause to block dozens of otherwise eligible requests.

November 28, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, November 26, 2021

"A New Generation of Prosecutors Is Leading the Charge to Reimagine Public Safety"

The title of this post is the title of this notable recent report from Data for Progress authored by Prerna Jagadeesh, Isa Alomran, Lew Blank and Gustavo Sanchez. Here is part of its introductions:

Local prosecutors possess unparalleled power within criminal legal systems across the country.  Also commonly referred to as District Attorneys, State’s Attorneys, Commonwealth Attorneys and County Attorneys, local prosecutors are responsible for the vast majority of criminal cases brought in the United States.  They have nearly unlimited discretion in deciding who to charge, the type of crimes to charge, and the severity of punishment at sentencing.  They are also primarily responsible for determining who stays in jail and who can be released back to their communities while awaiting trial, and they wield unmatched influence in determining the kind of criminal laws and penalties enacted by state legislatures.

Over the past five decades, prosecutors have deployed their power to charge and sentence even more people, relying heavily on incarceration or correctional supervision to control and punish people convicted of crimes.  While public safety was the purported justification for this approach, a growing body of research is finding that incarceration is ineffective at deterring crime and fails to prevent violent crime in the long-term.  Meanwhile, it has generated devastating consequences for many communities — particularly communities of color — in both direct and indirect ways. Mass incarceration has destabilized communities, worsened outcomes for children with incarcerated parents, increased morbidity and mortality, perpetuated generational wealth gaps, exacerbated mental illness among those incarcerated, and increased homelessness, alongside many other collateral consequences. ...

Notably, the prosecute-and-convict approach has also neglected the interests of those who have experienced and survived crime.  According to a groundbreaking survey of crime survivors conducted by the Alliance for Safety and Justice, the vast majority of victims –– who are more likely to be low-income, young, people of color –– prefer solutions that focus on alternatives to incarceration, such as job creation, crime prevention, rehabilitation, drug use and mental health treatment, among others.  In particular, seven out of ten would rather see prosecutors invest in solving neighborhood problems through rehabilitation, not prosecution and incarceration.

As a result, a growing number of prosecutors have begun to reimagine public safety in ways that reduce the use of prosecution and incarceration, create more effective and less destructive accountability strategies, end racial disparities, and address the drivers of criminal behavior as well as the needs of those most impacted by crime....

In the summer of 2021, Data for Progress surveyed 19 of these reform-minded prosecutors to identify their approaches to community safety, key policy changes, goals for the future, and obstacles impeding their efforts to achieve transformational change.  Their responses are detailed more fully below.

November 26, 2021 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Monday, November 22, 2021

Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations

Regular reader who recall my regular advocacy for Prez Biden to make nominations to the now-dormant US Sentencing Commission will know that this new Reuters story made me smile:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum.  Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed.  Armstrong and Raskin cited his potential departure as another reason to act.

The full letter can be found here.  I am ever hopeful that we will finally get nominations from Prez Biden no later than early 2022, though that will still be a year later than would have been ideal.  And I sincerely hope the Biden Administration will work effectively with Senate leaders to ensure his eventual nominees get a swift confirmation.  But even if this process gets going, it now seems unlikely a full USSC will be functioning before the May 1, 2022 deadline for the 2022 guideline amendment cycle, and so November 2023 could end up the earliest date for any guideline changes to become effective.

A few of many prior recent related posts:

November 22, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (4)

California's Committee on Revision of the Penal Code recommends abolishing capital punishment in the state

During a busy week last week, I missed this notable capital news from California: "Panel recommends repealing death penalty in California: The recommendation to end capital punishment comes after California voters rejected two ballot measures to abolish executions over the last decade and voted to speed up executions in 2016."  Here are the basics from the start of the news story:

As nearly 700 condemned California prisoners wait in limbo under a death penalty process halted by the governor, a key criminal justice panel on Wednesday recommended making the state’s temporary freeze on executions permanent.  The Committee on Revision of the Penal Code, a seven-member board formed by the state Legislature last year to propose criminal justice reforms, released a 39-page report recommending that capital punishment be repealed in the Golden State.

“More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme,” the report states. “It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.”  

Poring through data on death sentences imposed and carried out since capital punishment was reinstated in California in 1978, the panel concluded the post-conviction litigation process has become “almost unfathomably long and costly.”  The report cites staggering racial disparities in who gets sentenced to death, with people of color making up 68% of those on death row in California.  It further notes that about a third of condemned prisoners suffer from mental illness, according to figures cited in a federal class action over mental health care in California prisons.  

Additionally, the report highlights that innocent people are sometimes executed.  It describes how 185 prisoners sentenced to death across the U.S. were later exonerated, including five formerly condemned prisoners in California.

The full report, which is available at this link, includes these passages in its executive summary:

After a thorough examination, the Committee has determined that the death penalty as created and enforced in California has not and cannot ensure justice and fairness for all Californians.

More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme.  It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.  Hundreds of California death sentences adjudicated in state and federal courts have been reversed or otherwise thrown out as unconstitutional while only 33 people are currently eligible for execution. 

Furthermore, recent efforts to improve, simplify and expedite California’s system of capital punishment have failed to accomplish their stated goals and may have made things even worse.

For the reasons in this report, which includes new data presented here for the first time, the Committee unanimously recommends repealing California’s death penalty.  Because we appreciate that this is a difficult goal, in the interim, the Committee unanimously recommends reducing the size of California’s death row by the following means:

  • Award clemency to commute death sentences.
  • Settle pending legal challenges to death sentences.
  • Recall death sentences under Penal Code § 1170(d)(1).
  • Limit the felony-murder special circumstance.
  • Restore judicial discretion to dismiss special circumstances.
  • Amend the Racial Justice Act of 2020 to give it retroactive application.
  • Remove from death row people who are permanently mentally incompetent.

November 22, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Prosecutorial Reform and Local Crime Rates"

The title of this post is the title of this relatively short empirical paper available via SSRN and authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is its abstract:

Many communities across the United States have elected reform-minded, progressive prosecutors who seek to reduce the reach and burden of the criminal justice system.  Such prosecutors have implemented reforms such as scaling back the prosecution of nonviolent misdemeanors, diverting defendants to treatment programs instead of punishment, and recommending against cash bail for defendants who might otherwise be detained pretrial.  Such policies are controversial, and many worry that they could increase crime by reducing deterrent and incapacitation effects.  In this paper we use variation in the timing of when these prosecutors took office, across 35 jurisdictions, to measure the effect of their policies on reported crime rates.  While our estimates are imprecisely estimated, we find no significant effects of these reforms on local crime rates.

November 22, 2021 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Recent Prison Policy Initiative briefings spotlight how money matters, a lot, even in prison

I have been behind on highlighting some of the great briefings created or noted over the last month by Prison Policy Initiative.  A notable theme in all these recent reports is how economic realities and disparities do not get locked away even in with prison experience.  I recommend all this research in full:

"For the poorest people in prison, it’s a struggle to access even basic necessities: Our survey of all 50 states and the BOP reveals that prisons make it hard for people to qualify as indigent—and even those who do qualify receive limited resources."

"Show me the money: Tracking the companies that have a lock on sending funds to incarcerated people: We looked at all fifty state departments of corrections to figure out which companies hold the contracts to provide money-transfer services and what the fees are to use these services."

"The CFPB’s enforcement order against prison profiteer JPay, explained: The company was fined $6 million for exploiting people leaving prison."

"Blood from a stone: How New York prisons force people to pay for their own incarceration: A study by members of the New York University Prison Education Program Research Collective gives important first-hand accounts of the damage done when prisons shift financial costs to incarcerated people."

November 22, 2021 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, November 21, 2021

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

November 21, 2021 in Data on sentencing, Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Are more conservatives really turning away from the death penalty?

The question in the title of this post is prompted by this new Wall Street Journal article headlined "More Conservatives Turn Away From Death Penalty."  In addition, Demetrius Minor his this new opinion piece from Newsweek, headlined "Republicans Across the Country Are Joining the Fight to End the Death Penalty," provides this accounting:

[I]n deep red Utah are considering ending the state's death penalty. Governor Spencer Cox, who has previously revealed his support for the death penalty, says he is now open to "reevaluating" his stance on the issue. He is joined by Utah County Attorney David Leavitt, another Republican who has said his office would no longer seek death penalty prosecutions....

And this isn't just occurring in Utah. There is a nationwide trend of Republican- controlled state legislatures re-thinking capital punishment driven by the fiscal, moral, and cultural conservative values that should lead us to oppose the death penalty. Virginia repealed the death penalty in March 2021 with bipartisan support. Pennsylvania, Kansas, Wyoming, Kentucky, Georgia, Montana, Washington, and Ohio all have had Republican-sponsored bills this year, with a total of 40 Republican sponsors.

In Ohio, a political bell-weather state that has become very red in recent election cycles, former Congresswoman and now State Representative Jean Schmidt and Sen. Stephen Huffman are Republican prime sponsors of bills to end the death penalty. They are clear that the death penalty is a contradiction to their conservative beliefs.

I do sense that a few more GOP leaders are a bit more comfortable expressing capital opposition, and yet I am unclear if this is a major trend or really anything all that new.  Notably, I have seen (and blogged) about stories claiming or advocating for softer support for capital punishment among those on the right, and yet polling numbers do not show any real shift.  Gallup released its latest polling on the death penalty this past week, and here is its discussion of the political dynamics:

Gallup began asking its historical death penalty trend question in its annual Crime survey beginning in 2000. During this time, there have been two notable shifts in death penalty attitudes. Between 2011 and 2016, the percentage expressing support showed a drop to 61% from 66% in the preceding decade. In the past four years, support has fallen further to an average 56%.

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016. Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points). Now, 39% of Democrats and 54% of independents are in favor of the death penalty.

Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010.

Here is a sampling of some older posts on this front through the years:

November 21, 2021 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

Saturday, November 20, 2021

Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0

More than a decade ago, it took a couple years of Thanksgiving turkey pardon rituals before Prez Obama started receiving considerable grief for only granting clemencies to birds and not humans.  But I suppose we have made some progress in the last decade, as now one can find a few year-one commentaries assailing the Prez Biden's clemency record that is just fit the the farm and not for families:

From Marijuana Moment, "Biden Pardons Turkeys, But White House Has ‘Nothing New’ On Relief For Marijuana Prisoners"

From the New York Post, "Biden laughs off question about clemency for humans before pardoning turkeys"

From the Star Tribune, "When it comes to human pardons, thanks for nothing: President Joe Biden hasn't just not pardoned anyone — he's just letting the requests sit unanswered."

Disappointingly, there is still a lot more discussion of the names and fate of the turkeys who were "pardoned" than of the broken federal clemency process and the thousands of clemency requests so far ignored by the Biden Administration.  Sigh.

November 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 19, 2021

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

November 19, 2021 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

Can Oklahoma's current governor really preclude all future governors from further clemency grants for Julius Jones?

I just had a chance this morning to look at this actual executive order that Oklahoma Governor J. Kevin Stitt signed to commute the death sentence of Julius Jones to life imprisonment without the possibility of parole.  The document is interesting in part because it states that the Pardon and Parole Board's recommendation of a commutation to a "sentence of life with the possibility of parole" was not authorized by the Oklahoma Constitution or Oklahoma law and that the "Oklahoma Constitution and other laws of the State also do not provide the Governor authority to grant any such recommendation."  But speaking of a lack of authorization, I was especially struck by this additional part of the executive order:

The Governor has the power to grant commutations "upon such conditions and with such restrictions and limitations as the Governor may deem proper .... "  I hereby place the following conditions upon this commutation:

Julius Darius Jones shall not be eligible to apply for or be considered for a commutation, pardon, or parole for the remainder of his life.

In addition to laws prohibiting the Pardon and Parole Board from recommending and the Governor from granting to Julius Jones life with parole, now or in the future, the Pardon and Parole Board's Rules prevent Jones from re-applying for commutation.  Title 515, Chapter 15, Subchapter 15 of the Oklahoma Administrative Code states, "After receiving a favorable commutation of a sentence from the Governor, an Inmate is ineligible to apply for an additional commutation on the same sentence."

Though I strongly dislike and disfavor any policy of ever precluding a person from ever re-applying for clemency, I suppose I can see some viable legal basis for state laws or rules to preclude repeated clemency applications.  But, critically, this order seems to be trying to preclude all future Oklahoma executive officials from being able to even "consider" Jones "for a commutation, pardon, or parole for the remainder of his life."  And at the start of this order, Gov Stitt states his condition even more broadly: "I ... hereby commute the death sentence of Julius Darius Jones to life imprisonment without the possibility of parole, on the conditions that he shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole."  (Emphasis added.)

Jones is likely to live in prison for many decades, and further evidence of his innocence or other changed circumstances in the years ahead might want some future governor to consider and possibly grant some other form of clemency.  I do not think there is any legal basis for a current governor to tie the hands of all future governors in the way, but I suspect Jones and his allies will be disinclined to worry or litigate about this future issue while still celebrating his removal from Oklahoma's death row.

A few prior related posts:

November 19, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, November 18, 2021

Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole

A high-profile Oklahoma capital case involving claims of innocence took a notable turn just hours before a scheduled execution, as reported in this local press piece:

Julius Jones was scheduled to be executed at 4 p.m. Thursday at the Oklahoma State Penitentiary in McAlester. Oklahoma Gov. Kevin Stitt, however, announced at noon Thursday he has commuted Jones' sentence to life without the possibility of parole.

Jones, now 41, has been on death row for more than half of his life for the murder of Paul Howell. Jones has maintained his innocence, saying he was not responsible for the fatal shooting in Edmond in 1999. Jones' family insists he was at home.

The Oklahoma Pardon and Parole Board voted 3-1 on Nov. 1 to recommend Oklahoma Gov. Kevin Stitt grant clemency to Jones and reduce his sentence to life in prison with the possibility of parole....

Amanda Bass, the attorney for Julius Jones released the following statement after Gov. Kevin Stitt commuted Jones' sentence to life without the possibility of parole: "Governor Stitt took an important step today towards restoring public faith in the criminal justice system by ensuring that Oklahoma does not execute an innocent man. While we had hoped the Governor would adopt the Board's recommendation in full by commuting Julius's sentence to life with the possibility of parole in light of the overwhelming evidence of Julius's innocence, we are grateful that the Governor has prevented an irreparable mistake."...

“The governor just announced he’s going to grant clemency,” Tiffany Crutcher announced to the crowd outside the Oklahoma State Penitentiary in McAlester. The crowd erupted in shouts of joy. Supporters broke into tears, including Paige Patton who began to praise, “Thank you, Lord.”

The celebration lessened as Crutcher announced that the Governor's decision was to commute Jones' sentence to life without parole. The fight to prove Jones' innocence is not over, and his supporters will not stop, she said. “Julius will get to see sunlight,” Crutcher said. “Julius will not be underground, he will get to hug his family.”

A few prior related posts:

November 18, 2021 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"How to be a Better Plea Bargainer"

The title of this post is the title of this new paper authored by Cynthia Alkon and Andrea Kupfer Schneider now available via SSRN. Here is its abstract:

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context.  The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.

The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

November 18, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season

Rachel Barkow and Mark Osler have this new Hill commentary, headlined "Biden can't let Trump's DOJ legacy stifle reform," that focuses on Prez Biden's current disappointing clemency record.  I recommend the full piece, and here is a snippet:

We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead.

It is no small wonder that this approach has so far resulted in the first increase in the federal prison population in years. The DOJ is poorly situated to take the lead on whether to support legislation to reform sentencing and federal charges because its prosecutors inevitably want laws that make their jobs easier — even when the public interest and Biden’s commitment to reform criminal justice points in a different direction.  Nothing Trump did challenges the urgent need to take DOJ out of its lead policymaking role on criminal law reform — in fact, criminal law reform in the form of the First Step Act was one of his very few bipartisan accomplishments and was accomplished without the imprimatur of the DOJ.

And then there is Biden’s do-nothing approach to clemency, which he seems to have delegated entirely to the DOJ.  Biden inherited 14,000 pending clemency cases when he took office, and there was widespread agreement among those who studied the issue that the solution to the logjam requires moving clemency out of DOJ.  Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades.  That backlog is now 17,844.

So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War?  The only apparent answer is that Biden does not want to look like he is interfering with DOJ.  But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

Prior recent related post:

November 18, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, November 17, 2021

Henry Montgomery (of Montgomery v. Louisiana) finally granted parole at age 75

Henry Montgomery back in 2016 won in the US Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively. But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.   Montgomery was in February 2018 denied parole as detailed in this post, and he was denied parole again in April 2019 as detailed in this post.  But I am pleased to now be able to report that the third time was a charm for Montgomery as reported in this UPI piece headlined "Longtime inmate and key figure in juvenile sentence reforms finally wins parole." Here are some of the details:

A Louisiana man who's spent the vast majority of his life in prison for killing a sheriff's deputy when he was a minor almost 60 years ago -- and whose case has been instrumental in freeing hundreds of inmates who were sentenced to life for crimes as juveniles -- is finally getting his chance to walk free.

Henry Montgomery on Wednesday appeared at his third hearing before a Louisiana parole board. The first two turned him down.  The third gave him his freedom after 57 years behind bars.

For years, advocates have said Montgomery is serving an unconscionably long sentence for a crime he committed as a minor, in spite of state Supreme Court rulings that determined that life sentences for juveniles amount to "cruel and unusual punishment."...

Montgomery was 17 when he shot and killed East Baton Rouge Paris Deputy Charles Hurt in 1963, after the lawman caught him skipping school. He's now 75. He was initially sentenced to death, but that sentence was overturned in 1966 when the Louisiana Supreme Court ruled that he did not receive a fair trial. After a retrial, he was sentenced to life without parole.

Montgomery has been locked up in the Louisiana State Penitentiary, known as "Angola" after the former plantation that occupied the area. "Through his personal growth, maturity, and maintenance of an excellent record of conduct while in prison, Henry proves daily that he is no longer the 17-year-old child he was in 1963," Marshan Allen, national policy director of Represent Justice, said in a tweet before Wednesday's decision....

Montgomery's case was at the center of a legal fight that went all the way to the U.S. Supreme Court, and resulted in a ruling that's allowed nearly 1,000 people who were sentenced to life without parole as a juvenile to be freed....

At his first two parole hearings -- in 2018 and 2019 -- he was denied release. At both hearings, two of the three board members voted to grant him his release from prison and one voted to keep him imprisoned. At the time, parole decisions had to be unanimous. Earlier this year, however, Louisiana changed its law to require only a majority vote if an inmate meets certain conditions -- meaning Montgomery would be freed if he got another 2-1 vote in his favor.

The dissenting voter who voted against releasing Montgomery in 2019 said that he hadn't presented enough programs in prison. But Andrew Hundley, one of the people who was released as a result of Montgomery vs. Louisiana and director of the Louisiana Parole Project, said that Angola did not offer such programs for decades of his sentence. "It was the most violent prison in America.  There wasn't this idea of rehabilitation and that prisoners should take part in programming to rehabilitate themselves," he told The Atlantic. "That culture didn't exist and there weren't programs. You just woke up every day trying not to get killed."

Hundley added that he's felt like it's his "life's work" to get Montgomery and others like him out of prison. "Henry was in prison 18 years before I was born. And I've been home five and a half years now."

November 17, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 16, 2021

New OIG report assails BOP failures in implementation of FIRST STEP Act

This new Forbes article highlights key features of this detailed new memorandum from the Office of Inspector General criticizing the Bureau of Prisons on various failing that disrupted implementation of the FIRST STEP Act. Here is how the Forbes piece gets started:

On December 21, 2018, then President Donald J. Trump signed into law the First Step Act (FSA), which enacted several criminal justice reforms throughout the federal prison system. Now, nearly three years later, the Federal Bureau of Prisons (BOP) has yet to implement much its central purpose which was to further reduce institutional prison populations by offering incentives to inmates to earn credits toward more halfway house through certain educational programs.  It turns out part of the holdup on the implementation is because BOP management and union staff have been unable to come up with a solution to meet to discuss how the program will be implemented.  The reason we now know this is not because of an announcement from the BOP, but from the release of a recent Office of Inspector General (OIG) report criticizing the lack of implementation along with a lack of the BOP responding to a number of OIG reports over the past 3 years.

According to the OIG report, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner.  Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person.  This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA.

November 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

US Senate Judiciary Chair calling for AG Garland to fire head of Bureau of Prisons

This new AP article, headlined "Durbin calls for Garland to remove federal prisons director," reports on a notable call from a notable legislator for federal criminal justice personnel change. Here are the details:

The chairman of the Senate Judiciary Committee demanded Tuesday that Attorney General Merrick Garland immediately fire the director of the beleaguered federal Bureau of Prisons after an Associated Press investigation detailing serious misconduct involving correctional officers.

Sen. Dick Durbin’s demand came two days after the AP revealed that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since the start of 2019.  The AP investigation also found the agency has turned a blind eye to employees accused of misconduct and has failed to suspend officers who themselves had been arrested for crimes.

Durbin took particular aim at Director Michael Carvajal, who has been at the center of the agency’s myriad crises. Under Carvajal’s leadership, the agency has experienced a multitude of crises from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.

Carvajal was appointed by then-Attorney General William Barr but Deputy Attorney General Lisa Monaco said recently that she still had confidence in him despite the many serious issues during his tenure. The AP reported in June that senior officials in the Biden administration had been weighing whether to oust him. He is one of the few remaining holdovers from the Trump administration.

“Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more,” Durbin said in a statement. “It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.”...

Separately on Tuesday, the Justice Department’s inspector general found that the Bureau of Prisons had stalled the development of more than 30 agency policies because agency officials have been refusing to meet with the union representing prison workers for in-person policy negotiations, as required under a contract.

About half of the policies that have stalled for the last 20 months were created or revised in response to the First Step Act, a bipartisan criminal justice overhaul signed during the Trump administration and aimed at encouraging inmates to participate in programs aimed at reducing recidivism — which could let them out of prison earlier — easing mandatory minimum sentences and giving judges more discretion in sentencing.

The inspector general found that the Bureau of Prisons has not given credit to any of the about 60,000 federal inmates who have completed those programs because the agency hasn’t finalized its procedures or completed the policy negotiations with the union. The watchdog also found that the failure to negotiate has delayed the implementation of 27 recommendations from the inspector general’s office.

November 16, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another quartet of must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Since my last posting a few months ago, the series has added four awesome new essays, and here are links to the latest quartet:

Prior related posts:

November 16, 2021 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, November 15, 2021

Noting the SCOTUS "state of capital punishment" without discussing the state of capital punishment

Adam Liptak has this notable new New York Times "Sidebar" piece headlined "In Death Penalty Cases, an Impatient Supreme Court; Recent rulings, including one turning down a death row inmate’s request supported by the prosecution, offer telling glimpses of the state of capital punishment."  Here are excerpts (with a bit of emphasis added):

Two weeks ago, on the same day it heard arguments about the future of abortion rights in Texas, the Supreme Court turned down an appeal from a federal prisoner facing execution.  The move was in one sense routine, as the court has grown increasingly hostile to arguments made by death row inmates.   This became apparent in the final months of the Trump administration, when, after a hiatus of 17 years, the federal government executed 13 inmates.  “Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in a dissent at the time.

The court’s impatience was also evident last week at an argument over whether an inmate’s pastor could pray with and touch him in the death chamber.  Several conservative justices expressed dismay at what they said was last-minute litigation gamesmanship in death penalty cases.

Still, the case the court turned down two weeks ago was exceptional, providing a telling glimpse of the state of capital punishment in the United States.  The court rejected the inmate’s petition even though the prosecution agreed that his case deserved a fresh look.  In an 11-page dissent, Justice Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, said the majority had crossed a new bridge. “To my knowledge, the court has never before denied” such relief “in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt,” Justice Sotomayor wrote.

The case concerned Wesley P. Coonce Jr., who was serving a life sentence for kidnapping and carjacking when he helped murder another prisoner in the mental health ward of a federal prison.  A murder committed by an inmate already serving a life sentence is a capital crime, and he was sentenced to death.  Lawyers for Mr. Coonce asked the justices to return his case to an appeals court for reconsideration of his argument that he could not be executed because he was intellectually disabled.  There had been, the lawyers wrote, an important new development that could alter the appeals court’s analysis....

While the majority did not explain its thinking, a 2014 dissent from Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, provided a hint. Justice Alito wrote that the meaning of the Eighth Amendment should not be determined by “positions adopted by private professional organizations.”  The majority may also have thought that the Biden administration had its own tools to address Mr. Coonce’s case, notably by granting him clemency.

As the title of this post is meant to highlight, I am struggling a bit to see how the denial of cert by SCOTUS in Coonce serves as a "glimpse of the state of capital punishment in the United States."  For starters, the state of capital punishment in the United States is largely one of modern desuetude.  As detailed in this DPIC fact sheet, in 1999 there were 279 death sentences imposed and 98 executions; in 2019 there were 24 death sentences imposed and 22 executions.  Moreover, I am pretty sure Coonce still can have his death sentence reviewed via a 2255 motion and perhaps via other means, so maybe the case really is a "glimpse" into the various means capital defendants have to get their claims reviewed.

Moreover, as highlighted by the clemency point, what this case really shows to me is that the Biden Administration would rather push for courts to take people off death row rather than do it on their own.  After all, if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled, their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row since the Eighth Amendment precludes an execution of someone intellectually disabled.  That DOJ is merely urging here a "fresh look" strikes me far more as a "glimpse" into the state of the Biden Administration's actions on capital punishment.

November 15, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)