Friday, June 12, 2020

So many more federal sentence reductions using § 3582(c)(1)(A) to report before week concludes

Readers may recall this post from mid May listing more than two dozen grants of sentence reductions under § 3582(c)(1)(A) in one week showing up on Westlaw, and this latest posting reporting on grants from the first week on June showing comparable activity with sentence reduction grants.  As the long listing below highlights, the sentence reduction hits just keep on coming; I felt compelled to compile these grants before the week is out because there are already so many (and included below are few stragglers from last week that only recently appeared on Westlaw):

United States v. Padilla, No. 19-cr-03331-GPC, 2020 WL 3100046 (SD Cal. June 11, 2020)

United States v. Gamboa, No. 09-1741 JAP, 2020 WL 3091427 (D N.M.  June 11, 2020)

United States v. Williams, No. 06-cr-0143 (WMW/FLN), 2020 WL 3097615 (D Minn. June 11, 2020)

United States v. Nazzal, No. 10-20392, 2020 WL 3077948 (ED Mich. June 10, 2020)

United States v. Williams, No.19-cr-134-PWG, 2020 WL 3073320 (D Md. June 10, 2020)

 

United States v. Blye, No.  CR15-348RSL, 2020 WL 3064225 (WD Wash. June 9, 2020) 

United States v. Goins, No. 11-cr-20376, 2020 WL 3064452 (ED Mich. June 9, 2020)

United States v. Mason, No. 3:17-CR-104-CWR-LRA-3, 2020 WL 3065303 (SD Miss. June 9, 2020)

United States v. Malone, No. 12-146-03, 2020 WL 3065905 (WD La. June 9, 2020)

United States v. Dana, No. 3:17-cr-148-SI, 2020 WL 3056791(D Ore. June 9, 2020)

 

United States v. Lott, No. 95cr72, 2020 WL 3058093 (SD Cal. June 8, 2020) (stacked 924(c) case)

United States v. Parramore, No. CR18-156-RSM, 2020 WL 3051300 (WD Wash. June 8, 2020) 

United States v. Krashna, No. 17-cr-00022-JSW-1, 2020 WL 3053194 (ND Cal. June 8, 2020)

United States v. Rodriguez, No. 17-CR-157 (VEC), 2020 WL 3051443 (SDNY June 8, 2020) 

United States v. Conner, No. CR07-4095-LTS, 2020 WL 3053368 (SD Iowa June 8, 2020) 

 

United States v. Flores, No. 19-CR-6163L, 2020 WL 3041640 (WDNY June 8, 2020) 

United States v. Folwer, No. 17-cr-00412-VC-1, 2020 WL 3034714 (ND Cal. June 6, 2020)

United States v. Holmes, No. 14-00167 (DWF/LIB), 2020 WL 3036598 (D Minn. June 5, 2020)

United States v. Smith, No. 15-cr-30039, 2020 WL 3027197 (CD Ill. June 5, 2020)

United States v. Fettis, No. 17-cr-30003, 2020 WL 3027198 (CD Ill. June 5, 2020)

 

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Riley, No. ELH-16-0402, 2020 WL 3034843 (D Md. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb.. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

Abdallah v. United States, No. 4:15-cr-18(3), 2020 WL 3039122 (ED Va. June 4, 2020)

As I have mentioned before, late week rulings often do not appear on Westlaw right away, so there are likely to be additional grants from this week that will appear on Westlaw later.  And, of course, these Westlaw listings do not represent all sentence reductions being granted by federal courts these days; I have noted data in a Marshall Project article leading me to think Westlaw picks up at most half of all federal sentence reduction grants.  Indeed, I recently heard from a good authority that there were an average of more than 50 of these grants per week for the month of May.  So, even with this long list of 25 new sentence reduction grants from Westlaw, this list still likely represents only about 50% of the true total.

Prior recent related posts since lockdowns:

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

Thursday, June 11, 2020

"A legislative guide for winnable, high-impact criminal justice reforms"

The title of this post is the title of this new detailed briefing from the Prison Policy Initiative. Here is the start and table of contents (with links):

Given the public’s increasing demands for real change to the criminal justice system, we’ve updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory.  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.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.

This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state’s criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one’s own.  The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it’s important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful.  For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.

Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don’t yet have enough useful resources that would make sense in most states.  But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.

Table of Contents

End unnecessary jail detention for people awaiting trial and for low-level offenses (2 recommendations)

Shorten excessive prison sentences and improve release processes (2 recommendations)

Sentence fewer people to incarceration and make sentences shorter (3 recommendations)

Change the financial incentives that fuel punitive justice system responses (2 recommendations)

Stop probation and parole systems from fueling incarceration (4 recommendations)

Keep criminal justice, juvenile justice, and immigration processes separate (2 recommendations)

Give all communities equal voice in how our justice system works (2 recommendations)

June 11, 2020 in Elections and sentencing issues in political debates, Recommended reading, Who Sentences | Permalink | Comments (2)

Wednesday, June 10, 2020

A few interesting accounts of Joe Biden on criminal justice

In the criminal justice arena, I have come to think of Joe Biden as a Zelig-like figure: out of a desire to fit in politically, Biden seems to be inclined to take on the criminal justice character of the era. For that reason, I expect he would prove to be somewhat reform-minded (though still pretty mainstream) were he to become President in 2021.  My framing and thinking here is reinforced by a number of new press articles on Biden and criminal justice:

From the AP, "Joe Biden says questions about 1994 crime bill are ‘legitimate’"

From CNN, "Biden repeatedly pushed bill in Senate that critics said would have made investigating police officers for misconduct more difficult"

From NPR, "Joe Biden Has Come A Long Way On Criminal Justice Reform. Progressives Want More"

From Slate, "The Protests Haven’t Changed Joe Biden Yet. They Will Change the Democratic Party."

While there are a lot of interesting elements to these pieces, I especially liked this portion of the NPR piece:

Chiraag Bains, who worked in the Department of Justice's Civil Rights Division during the Obama administration [and who] Bernie Sanders tapped to co-chair the criminal justice reform committee the Sanders and Biden campaigns set up at the end of their primary contest [wants more].  "It's not enough to speak to people's pain and utter the right words," said Bains, who emphasized he was speaking for himself, not the task force.

Bains said Biden's statements and speeches have been the right start and have been well-received — especially when contrasted to the president. "But we need a specific agenda and it needs to be bold," he said. "I do see that the vice president is moving that direction. I just think we need to do more."  Bains wants Biden to expand on already-announced proposals on ending mandatory-minimum prison sentences and ramping up the use of clemency.  He's also pushing for the restoration of federal parole and the legalization of marijuana, among other policies.

More clemency, eliminate mandatory minimums, restore federal parole and legalize marijuana is a pretty good accounting of my priority wish list for federal criminal justice reform.  If Biden were to champion all these reforms in the months ahead, I would need a better adjective for him than Zelig-like.

June 10, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

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

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

About

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

Contest Objective and Deliverable

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

Contest Timeline and Awards

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

June 10, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Split Sixth Circuit panel vacates district court order to transfer vulnerable prisoners "out of Elkton through any means"

A few months ago, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel refused initially to stay it, and thereafter Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."  The feds ultimately was able to get these actions stayed by the Supreme Court, and late yesterday a split Sixth Circuit panel vacated the injunction upon concluding, by a 2-1 vote, "that the district court abused its discretion in granting the preliminary injunction."

This Politico piece, headlined "Appeals court nixes order to shrink prison rolls because of virus," provides a usefully summary of the nearly 30 pages of opinions:

A divided federal appeals court has overturned a judge's order that required a federal prison in Ohio hard hit by the coronavirus to cut its inmate population by sending medically vulnerable prisoners home or to other prisons. A panel of the 6th U.S. Circuit Court of Appeals split 2-1 as it struck down the lower court's order to thin the ranks at the Elkton Federal Correctional Institution in Lisbon, Ohio, after a Covid-19 outbreak there that has cost 19 lives. More than a quarter of the roughly 2,000 inmates at Elkton have tested positive for the virus.

U.S. District Judge James Gwin ruled in April that prison officials were not doing enough to mitigate the danger to inmates. He ordered that officials transfer or release elderly prisoners and those with health conditions believed to lead to serious illness from the coronavirus.

However, the appeals court's majority said the steps the Bureau of Prisons took — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — meant officials were not deliberately endangering prisoners in a way that made their punishment "cruel and unusual" under the Constitution. "The BOP argues that these actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment. We agree," Judge Julia Gibbons wrote, joined by Judge Deborah Cook.

BOP was slow to roll out widespread testing at Elkton, even as Ohio state officials moved much faster to get mass testing underway at one of their badly hit prisons. But Gibbons said the federal officials' effort met the legal standard. "The BOP initally struggled to scale up its testing capacity just before the district court issued the preliminary injunction, but even there the BOP represented that it was on the cusp of expanding testing. The BOP’s efforts to expand testing demonstrate the opposite of a disregard of a serious health risk," she wrote. Gibbons also chided Gwin for failing to address "how the released inmates would look after themselves."

Chief Judge R. Guy Cole Jr. dissented, saying federal officials were too slow to respond to the rising death toll at the prison. "I am left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim," Cole wrote.

Cole also faulted the Bureau of Prisons for offering action plans detailing a multiphase response, where the details left much to be desired. One phase consisted entirely of gathering and inventorying cleaning supplies, he wrote. "The BOP’s multiphase response does not include a single phase that allows for meaningful social distancing," the judge added.

The 6th Circuit panel split along ideological lines. Gibbons and Cook are appointees of President George W. Bush. Cole was appointed by President Bill Clinton.

Advocates for inmates expressed disappointment in the decision. “Today’s ruling is a major loss for incarcerated people who are at risk from this deadly disease,” said David Carey of the ACLU of Ohio, which brought the lawsuit. “With hundreds of people currently sick, and nearly everyone else at Elkton exposed, the federal government has a duty to take quick and decisive action."

Prior related posts:

June 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"

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

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision.  This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and,as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections.  The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way.

This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence.  First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision.  While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate.  Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine.  This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect.  But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed.  Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.

June 10, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, June 09, 2020

Big new Heritage report takes stock of DOJ's risk and needs assessment system resulting from FIRST STEP Act

The Heritage Foundation has this week released this new 30-page report authored by Charles Stimson that takes a close look at the risk and needs assessment system created by the Justice Department as required by the FIRST STEP Act.  The title of the report captures its basic theme: "The First Step Act’s Risk and Needs Assessment Program: A Work in Progress."  Here is a summary from this Heritage webpage:

The First Step Act is a significant achievement. It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform. Stakeholders from across the ideological spectrum came together to get behind much-needed legislation. A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system. To date, the Department of Justice has risen to part of the challenge by publishing PATTERN, its risk assessment tool. No doubt, PATTERN will continue to be refined, as any modern risk assessment program is only as good as the latest science and research.

And here is the conclusion of the full report:

The First Step Act is a significant achievement.  It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform.  Stakeholders from across the ideological spectrum came together to get behind much-needed legislation.

A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system.  To date, the DOJ has risen to part of the challenge by publishing PATTERN, its risk-assessment tool.  In short order, it refined PATTERN after taking into consideration a wide variety of viewpoints.  No doubt, PATTERN will continue to be refined, as any modern risk-assessment program is only as good as the latest science and research.

With respect to developing a new and improved needs-assessment program under PATTERN, the DOJ has so far fallen short, but has acknowledged an ambitious time frame in which to publish that program.

As PATTERN matures, and more data becomes available, we will be able to ascertain how accurate PATTERN is in predicting recidivism and whether, in its application, it proves to be both race and gender neutral and an effective tool.  The DOJ should continue to be prudent in studying the data as it accrues and considering a wide variety of feedback on PATTERN, and should base future decisions based on fact and the best science available, not political considerations or outcome-based desires.

June 9, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Prosecutors and Their Legislatures, Legislatures and Their Prosecutors"

The title of this post is the title of this book chapter authored by Russell Gold recently posted to SSRN. Here is its abstract:

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology.  Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation-of-powers story.  Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep.  And with respect to substantive criminal law, prosecutors have been enormously empowered.  Prosecutors are not merely passive recipients of such power but indeed actively lobby for it — often quite successfully. 

But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets.  Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. 

Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable cash bail less frequently and providing defendants with more discovery than is required by law.  In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

June 9, 2020 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Monday, June 08, 2020

US Sentencing Commission releases awesome new data tool, "Interactive Data Analyzer"

Download (1)I was pleased to receive today from the US Sentencing Commission an email blaring "JUST LAUNCHED: Interactive Data Analyzer." Here is part of the text of the email:

You've got questions, IDA has data! The U.S. Sentencing Commission's Interactive Data Analyzer (IDA) is an online tool that can be used to explore, filter, customize, and visualize annual federal sentencing data. 

Some of IDA's features include:

  • Simple visualization and navigation of complex datasets (tutorial video);

  • Readymade dashboards for the most common federal crime types;

  • Combined annual data and trend analyses spanning five years;

  • Data filters by geography, demographics, crime and drug types;

  • Cross-sectional variable analysis; and

  • Export options that include formatted tables and raw data (tutorial video);

This great new tool is also explained at this USSC webpage, which includes this text:

The Interactive Data Analyzer (IDA) is an online tool that can be used to explore, filter, customize, and visualize federal sentencing data. IDA presents annual data that is stored in a secure data warehouse and refreshed periodically with the latest information collected, received, and edited by the Commission.

IDA offers prebuilt data dashboards for the four most common crime types in the federal caseload and for other common areas of interest. You can navigate to these sections using the main menu.

If you're looking for more granular data, use the filtering menu along the left side of any page. You can select data by fiscal years, jurisdictions, offender characteristics, or other variables. Filtering options will vary based on the topics you choose.

Kudos to the USSC for creating this now and helpful way to access its data. I am already having fund with IDA, and I am certain it will prove to be a useful resource for academics, policy-makers and practitioners.

June 8, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

New Federal Defenders fact sheet highlights flaws in recent USSC report on incarceration lengths and recividism

This post from late April flagged this notable report by the US Sentencing Commission, titled "Length of Incarceration and Recidivism," which reported, inter alia, that the "Commission consistently found that incarceration lengths of more than 120 months had a deterrent effect."  The empiricism of this report was quickly questioned by two academics with empirical props, Jennifer Doleac and John Pfaff, and now the Sentencing Resource Counsel of the Federal Public and Community Defenders have produced this lengthy fact-sheet and this two-pager detailing problems with this USSC's report.

The nine-page "fact sheet" from the defenders is titled "Flawed U.S. Sentencing Commission Report Misstates Current Knowledge," and here is its initial "Summary":

In April 2020, the U. S. Sentencing Commission issued a report entitled “Length of Incarceration and Recidivism.”  In its report, the Commission claimed that “incarceration lengths of more than 120 months had a deterrent effect.” No effect was found for sentences 60 months or less, while sentences between 60 and 120 months yielded inconsistent results.

None of the findings in this report should be used by judges, legislators, or the Commission to make decisions of any kind.  The report badly misrepresents the research literature (Section I), uses a weak methodology for inferring causation (Section II), and fails properly to control for defendants’ criminal history (Section IV).  The report states its findings in a misleading form prone to misinterpretation and exaggeration (Section III).  The anomalous pattern of findings fits no theory of deterrence (Section VI), and no previous study has found the same pattern.  Further, it is unlikely the report’s findings would replicate or withstand tests for robustness, but because the Commission will not release data underlying the report, independent evaluation is impossible (Section IX). 

As a bipartisan agency, charged with being a “clearinghouse” for information on the effectiveness of sentencing practices, the Commission should issue accurate reports on the current state of knowledge regarding important policy questions. This report fails to meet that standard.

Prior related post:

June 8, 2020 in Data on sentencing, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Justice Sotomayor flags due process concerns with how Eleventh Circuit considers inmate efforts to file second/successive habeas petition under AEDPA

The US Supreme Court has kicked off another work week with another anticlimactic order list this morning.  The Court granted cert only on a procedural immigration issue, while failing to take any action on an array of Second Amendment and qualified immunity cases that it has been sitting on for a number of weeks.  Still, there are some in crumbs for hard-core habeas fans thanks to a statement on the denial of cert from Justice Sotomayor concerning the process the Eleventh Circuit uses to consider and resolve requests from inmates seeking to file a second or successive habeas petitions under the Antiterrorism and Effective Death Penalty Act.  Here are parts of the start of Justice Sotomayor's six-page statement to provide a flavor of her concerns:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes several restrictions on inmates seeking to file a second or successive habeas petition.... But an inmate seeking such authorization from the Court of Appeals for the Eleventh Circuit faces even greater hurdles.
Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application.  In re Williams, 898 F.3d 1098, 1102 (2018) (Wilson, J., concurring).  Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F.3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc).  That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture....

These factors make out a troubling tableau indeed.  Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process.  The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case.  In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

June 8, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, June 07, 2020

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!) Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimumsEven before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

June 7, 2020 in Collateral consequences, Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Saturday, June 06, 2020

New (and free) Federal Sentencing Reporter issue on "State Prosecutors: Their Impact on Mass Incarceration and Criminal Justice Reform"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, as it allows me to flag the latest FSR issue and some of the articles therein. This new issue was put together by FSR editor/Prof Nora Demleitner and the title and coverage in her opening article provides an an overview:

State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora Demleitner:

In this Issue of the Federal Sentencing Reporter we turn to the role of state prosecutors in sentencing.  In recent years, both the scholarly discourse and the advocacy community have increasingly focused on the impact prosecutors have had on mass imprisonment and the expansion of the supervision regime.  A new cohort of ‘‘progressive prosecutors’’ have campaigned on the promise of less imprisonment and greater racial equality.  Some have captured the head prosecutor positions in large U.S. jurisdictions, including Chicago, Brooklyn, Boston, Philadelphia, and San Francisco.  They have instituted a host of often dramatic changes. To date, smaller jurisdictions and less urban areas of the country have been little impacted by this prosecutorially driven move toward criminal justice reform.

This Issue highlights the different levels of decision making that are in the hands of prosecutors throughout the criminal justice process.  From the allocation of resources and charging policies to the explicit refusal to ever ask for a death sentence, prosecutorial choices impact the sentences the criminal justice system imposes.  With the ever-growing expansion of the prosecutorial toolbox and impact, increasingly the decisions of district attorneys have repercussions for other aspects of communities, such as the mental health system.  Prosecutor elections can have a vast impact on communities, but Carissa Hessick’s study on prosecutor elections in this Issue highlights how they can be undemocratic and how their importance can be underestimated.

The ongoing crisis surrounding COVID-19, the novel coronavirus that has brought countries, including our own, virtually to a standstill, vividly displays the role prosecutors play in our communities and the impact their decisions have on the welfare and life of those involved in the criminal justice system.  There may be no more powerful indicator of prosecutors’ influence than their ability to prioritize public health concerns during this crisis in order to help thin out jail populations and thereby create greater means to ‘‘social distance’’ behind bars.  Even though local prosecutors play an active role in populating state prisons, their role in decreasing the prison population is more limited, especially when prisons preclude front-end entry through jail transfers.

Here are some of the original articles from the issue:

Reimagining a Prosecutor’s Role in Sentencing by Lauren-Brooke Eisen and Courtney M. Oliva

Local Prosecutor Elections: Results of a National Study by Carissa Byrne Hessick

Prosecutor-Driven “Second-Look” Policies Are Encouraging, but Not a Panacea by Rory Fleming

Bettering Prosecutorial Engagement to Reduce Crime, Prosecutions, and the Criminal Justice Footprint by Assistant District Attorney Sabrina Margret Bierer

A Qualitative Perspective on Alternative Sentencing Practices in Virginia by Anne Metz

June 6, 2020 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, June 05, 2020

NC Supreme Court limits reach of repeal of state's Racial Justice Act in capital cases

Over a decade ago, North Carolina enacted a Racial Justice Act that allowed a capital defendant to seek relief on a claim that race was a significant factor in the decision to seek or impose the death penalty in his case. After nearly every person on North Carolina's death row made a claim under this statute, it was repealed by the legislature. Today the North Carolina Supreme Court in North Carolina v. Ramseur, No. 388A10 (N.C. June 5, 2020) (available here), limits the impact of this repeal. The majority opinion in this 6-1 ruling starts this way:

Defendant, Andrew Darrin Ramseur, was convicted of two counts of firstdegree murder and sentenced to death in 2010.  After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case.  Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims.  Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.

The dissent by Justice Newby starts this way:

The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative.  The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck.  The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007.  When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence.  The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.

June 5, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Encouraging decarceration news from New England has me thinking about tipping points

I was quite pleased and intrigued to see this morning two notable lengthy recent stories about reduced prison populations in two northeastern states. Both pieces merit reading in full, and here are headlines, links and excerpts, with some broader comments to follow:

"Justice Served?  Vermont Considers Corrections Reform to Shrink Its Prison Population

When lawmakers returned to Montpelier in January, one of their top priorities was to reduce the number of people imprisoned by the State of Vermont. They succeeded — but not the way they expected.

The coronavirus pandemic has prompted prosecutors to avoid locking up all but the most serious suspected offenders, and it's led the Department of Corrections to release some inmates who have served their minimum sentences and been deemed low-risk to the community.  As a result, Vermont's prison population has dropped nearly 17 percent since January, from 1,678 to 1,401.

Now, lawmakers are hoping to lock in that progress by returning to the criminal justice reforms they began contemplating in January. "Our numbers are down, so let's really put in the effort to keep those numbers down," said Rep. Alice Emmons (D-Springfield), who chairs the House Corrections and Institutions Committee.

"As CT prison population nears 30-year low, fewer intakes drive declines"

The state’s incarcerated population is on track to drop below 10,000 this month for the first time in nearly 30 years, a milestone accelerated by the global coronavirus pandemic.  Still, the drop in overall prison population — more than 2,000 people, or 16 percent since March 1 — is overwhelmingly the result of fewer prisoners entering the system rather than a sharp rise in releases, a Hearst Connecticut Media analysis shows.

The population of white prisoners declined by 19 percent, while the population of black and Hispanic incarcerated people has fallen by 14 percent, the analysis shows. It’s not clear why that discrepancy happened. Racial and ethnic minorities make up a majority of the overall prison population.

The state Department of Correction has come under pressure to release more inmates nearing the end of their sentences, especially those who are older or medically vulnerable to coronavirus.  And the department has called attention to the declining prison population.

A press release Tuesday claimed significant increases in discretionary releases, and devoted six paragraphs to the release program, including comments from Commissioner Rollin Cook, who said, “The impressive and substantial decrease in our population speaks volumes about the caliber and hard work of our staff, as well as that of our partners in the criminal justice community.”  The department cited a national report showing Connecticut ranked No. 6 among states reducing their prison populations between the end of December, 2019, and early May of this year.

There are remarkable stories and sub-stories in both of these lengthy articles, but the parts I have quoted might provide a sense of why I am thinking about tipping points. I find it remarkable and heartening that a lawmaker in Vermont is quoted as urging the state to keep its (already relatively low) prison population down after the COVID decline.  And it is even more remarkable and heartening that a press release from the Connecticut Department of Correction is bragging about reducing its population more than most other states in the COIVD era.  I sense we have really gotten to the point, at least in some significant quarters, that a rising prison population is viewed as a failure and a reduced population is deemed a success.

A sea-change in attitudes toward imprisonment and prison populations is one part of achieving a tipping point, but so too will be more fundamental structural change.  Part of that structural change may now be happening economically as states are sure to be eager in these new lean budget times to limit expenditures on corrections.  And if serious reforms in policing and punitiveness follows from all the latest calls for racial justice, I really might be ready to start to envision a true new dawn of smarter justice.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

As reported in this Courthouse News Service report, a high-profile federal white-collar prisoners was denied compassionate release yesterday afternoon.  Here are the basics (and a link to the opinion):

Bernie Madoff’s terminal illness will not alter a federal judge’s ruling from just more than a decade ago: The man behind an “extraordinarily evil” Ponzi scheme will die in prison.

“When I sentenced Mr. Madoff in 2009, it was fully my intent that he live out the rest of his life in prison,” Judge Denny Chin, who dealt Madoff’s 150-year sentence before being appointed to the Second Circuit, wrote on Thursday. “His lawyers asked then for a sentence of 12 to 15 to 20 years, specifically with the hope that Mr. Madoff would live to see ‘the light of day.’ I was not persuaded; I did not believe that Mr. Madoff was deserving of that hope. Nothing has happened in the 11 years since to change my thinking."... 

Madoff’s attorney Brandon Sample said his client suffers from end-stage renal disease and other conditions that give him less than 18 months to live.  “Judge Chin recognized today that Madoff’s health is in serious decline and that he is, in fact, terminally ill,” Sample wrote. “Nonetheless, Judge Chin essentially found that because of the nature of Madoff’s crimes — Madoff is beyond redemption. We are disappointed with Judge Chin’s refusal to grant Madoff any compassion.”

The financial criminal will seek clemency from President Donald Trump. “We implore the president to personally consider Madoff’s rapidly declining health,” Sample added....

Letters opposing Madoff’s release showed that [negative victim] sentiment has not ebbed. Prosecutors said that more than 500 victims opposed his release, and only 20 wrote in support.  “I also agree that at age 81, with his declining physical condition, Mr. Madoff probably does not pose a danger to any person or the community,” Chin wrote. “But as the recent victim letters show, many people are still suffering from Mr. Madoff’s actions. I also believe that Mr. Madoff was never truly remorseful, and that he was only sorry that his life as he knew it was collapsing around him. Even at the end, he was trying to send more millions of his ill-gotten gains to family members, friends, and certain employees.”

Madoff is confined to the Federal Medical Center in Butner, North Carolina, which — like many prisons throughout the country — is grappling with the coronavirus.  Neither Madoff’s request nor the ruling mentions the pandemic.

While this 16-page opinion from Judge Chin does not mention COVID, a whole lot of other compassionate release rulings handed down yesterday did.  I figured here it might be useful to highlight a number of the positive rulings from just the same day as this Madoff denial that already appear on Westlaw (and this weekend I will try to compile the more extended list of  positive § 3582(c)(1)(A) rulings from other days):

United States v. McKinney, No. 18-CR-6035L, 2020 WL 2958228 (WDNY June 4, 2020)

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

United States v. Rivera-Amaro, No. 1:18-CR-00183 EAW, 2020 WL 3000392 (WDNY June 4, 2020)

I am pretty confident that this list of grants are not all of those that will show up on Westlaw eventually, and I am even more certain that there were a number of federal sentence reductions granted under § 3582(c)(1)(A) yesterday that will not ever show up on Westlaw.  In other words, while high-profile cases like Bernie Madoff will garner headlines, an ever-growing number of federal defendants are garnering sentence reductions thanks to the FIRST STEP Act.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 04, 2020

Justice Sotomayor stays federal judicial orders to transfer vulnerable Elkton prisoners pending Sixth Circuit appeal

As noted in this post, last week the full Supreme Court denied, by a 6-3 vote, a request by the federal government to stay a federal district court order to release or transfer vulnerable inmates from the Elkton federal prison.  But this ruling was, in essence, based on a technicality, and today Justice Sotomayor via this order granted the stay the feds were seeking:

IT IS ORDERED that the District Court’s April 22 and May 19 orders are hereby stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.

I believe the Sixth Circuit panel is due to hear argument tomorrow on this matter, but this stay enables federal officials to keep moving slowly on moving vulnerable prisoners out of a prison that has had hundreds of COVID cases and a handful of deaths.

Prior related posts:

UPDATE: Amy Howe has this lengthy and effective posting at SCOTUSblog about the Elkton litigation and the stay granted by Justice Sotomayor.

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction"

The title of this post is the title of this notable new article now available via SSRN authored by Erica Zunkel and Alison Siegler. Here is its abstract:

While state drug law reform is moving apace, federal drug law reform has moved much more slowly.  Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years.  But Congress has not acted.  As a result, the federal system continues to single out drug offenses for harsh treatment at the front end — the bail stage — and the back end — the sentencing stage — of a case.

This article examines the judiciary’s crucial role in federal drug law reform at the front and back ends of a drug case.  On the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention in drug cases and giving little, if any, weight to the Bail Reform Act’s presumption of detention at the detention hearing stage.  Data shows that the drug presumption is over-broad and does a poor job of determining who is a risk of flight or a danger to the community.  At the back end, judges should issue categorical policy disagreements with the drug sentencing guideline and the career offender sentencing guideline under the Supreme Court’s rationale in Kimbrough v. United States.  These guidelines are not based on empirical evidence and national experience, and therefore do not exemplify the Sentencing Commission’s “exercise of its characteristic institutional role.”  At both ends, judges should emphasize the evidence that the drug presumption, the drug sentencing guideline, and the career offender sentencing guideline are flawed.  While these actions are not a cure for Congress’ inaction, they send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

June 4, 2020 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone

Last week, as reported here, "Bureau of Prisons spokeswoman Sue Allison told The Associated Press that [Roger] Stone is supposed to surrender to the Bureau of Prisons by June 30" to begin serving his 40-month federal prison sentence.  But, as this new article highlights, a tweet by President Trump this morning suggest that the Prez plans to make sure Stone never has to sleep at a prison facility:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.  “This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”

Trump went on to share that tweet Thursday morning, writing in his own accompanying message: “No.  Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!”

The president’s social media post represents his latest intervention in Stone’s case and comes after Trump and Attorney General William Barr were widely rebuked by congressional Democrats and career Justice Department officials for involving themselves in the federal law enforcement matter just a few months ago.

Federal prosecutors had urged in February that Stone be sent to prison for roughly seven to nine years for impeding congressional and FBI investigations into connections between the Russian government and Trump’s 2016 campaign.

But after Trump blasted the prosecutors’ sentencing recommendation in a tweet as a “horrible and very unfair situation,” the Justice Department submitted a revised filing that offered no specific term for Stone’s sentence and stated that the prosecutors’ initial proposal “could be considered excessive and unwarranted.” The four attorneys who shepherded Stone’s prosecution proceeded either to resign or notify the court that they were stepping off the case.

I have long been assuming (as some prior posts below reveal) that Prez Trump will use his clemency pen to keep Stone from serving prison time.  But I have also long been wondering what form of clemency Prez Trump might use.  He could provide Stone with a full pardon, of course, which would wipe away the conviction and all its consequences.  But he also could just commute his prison sentence (which, folks may recall, is what George W. Bush did for Scooter Libby).  Or, perhaps least controversially, Prez Trump could simply use his clemency power to order Sone's prison sentence to be served through home confinement (which, folks should realize, is comparable to what's happening for a number of federal prisoners in response to COVID-19 concerns).

Prior related posts:

June 4, 2020 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, June 03, 2020

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

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

About

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

Contest Objective and Deliverable

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

Contest Timeline and Awards

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

June 3, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Eight years after Miller and four after Montgomery, many juveniles still waiting for court consideration of their Eighth Amendment rights

The Marshall Project has this lengthy new piece focused on how many juveniles still have not received court consideration of the Eighth Amendment rights recognized a full eight years ago in Miller v. Alabama, 567 U.S. 460 (2012). The article's fill headline captures its essence: "'Juvenile Lifers' Were Meant to Get a Second Chance. COVID-19 Could Get Them First. The Supreme Court gave teens sentenced to life in prison a shot at freedom. Many are still waiting."  Here is how the piece gets started:

Darnell Johnson long believed that he would die alone in a prison cell.  In 1998, a Michigan court sentenced him to life behind bars without the possibility of parole for killing a woman and shooting two others during a botched armed robbery when he was 17, court records show.

Johnson had been in prison for more than a decade when the U.S. Supreme Court issued two rulings, one in 2012 and another in 2016, that said “juvenile lifers” like him must have their sentences reviewed, taking into account that they were not yet adults when they committed their crimes.  In many states, hundreds saw their prison terms shortened or were released.

But Johnson and nearly 1,000 others incarcerated since their youth across the United States are still waiting for a court hearing — and now they face a growing fear that they will lose their lives to COVID-19, the disease caused by the coronavirus, before getting their chance at freedom.

Johnson, 40, who is black, has asthma and hypertension, risk factors for serious complications from the coronavirus.  He is incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, one of the nation’s worst prison hot spots with more than 725 confirmed COVID-19 cases as of Monday.  “All hope of being released is fading away every minute, every hour, every day,” Johnson said via a prison email app. “To have made it to the ‘finish line’ only to possibly die from this virus is that much more frightening.”

The United States is the only country in the world that sends children to prison with no chance of getting out, according to The Sentencing Project, a prison research organization. Roughly 80 percent of juvenile lifers are people of color. As the pandemic devastates prisons and jails, some governors, parole boards and prosecutors are releasing some prisoners who were serving short sentences for low-level crimes. The rationale is that they are less likely to re-offend, according to public statements by officials. Juvenile lifers have rarely been mentioned in this conversation.

That omission is misguided, prisoner advocates say. “These are human beings who brain science shows have ‘aged out’ of crime,” said Renée Slajda, spokeswoman for the Louisiana Center for Children’s Rights, a legal advocacy organization. “If you had to pick between people who just got to jail or ones who have decades of good behavior under their belt, which is a safer bet to release?” asked Ashley Nellis, a senior analyst focusing on lifers at The Sentencing Project.

Johnson, for instance, has received just one misconduct ticket during his entire incarceration: in 2001, according to court records.  He also scored a “low” risk rating for violence or re-offending on a corrections department-administered risk assessment, the document shows.  Johnson’s good behavior in prison had given him hope that the 2016 Supreme Court decision, Montgomery v. Louisiana, would apply to him.  The court ruled that because young people’s brains are still developing, along with their awareness of the consequences of their actions, those who had been sent to adult prison for life for crimes committed as children should get an opportunity to be resentenced — a chance to prove they have been redeemed.

When Johnson heard about the decision, he and friends who also were incarcerated as teens were “slapping each other on the back, saying, ‘We made it!’” he said.  Yet his dream of freedom has been deferred nearly five years because of court delays and because his prosecutor, who has the ability to grant him a shorter sentence, has been unwilling to do so.  At a hearing in December, Johnson will have the chance to challenge the prosecuting attorney’s decision, citing the Supreme Court ruling, says his attorney, Sofia Nelson of Michigan’s State Appellate Defender Office.

Johnson is one of about 200 of Michigan’s more than 350 juvenile lifers who have yet to receive a new sentence, according to court and prison records.  That is the most of any state.  Michigan is also third only to Ohio and Texas with more than 3,000 confirmed COVID-19 cases among incarcerated people, according to The Marshall Project’s tracker. Johnson said he has watched his prison friends catch the virus and worries he could be next.

June 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 02, 2020

"Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment's Right to Counsel"

The title of this post is the title of this notable new paper authored by Neel Sukhatme and Jay Jenkins now available via SSRN. Here is its abstract

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay.  Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise.  These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete.  Rather, indigent defense systems often fail due to poor design: they do not align publicly funded defense attorneys with their clients’ best interests.  This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States.  We explain how such assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

We then show how campaign finance exacerbates this problem.  Specifically, we provide empirical evidence that elected trial court judges and criminal defense attorneys regularly engage in “pay to play,” where judges appoint attorneys who donate to their campaigns as counsel for indigent defendants.  We find trial judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments.  These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a 27-fold return on her donation.  Indeed, we find indigent defense appointments can be surprisingly lucrative, with many donor attorneys earning tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges.

Worse, this apparent quid pro quo between judges and defense attorneys appears to directly harm defendants.  We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences.  We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter.

Our study is the first empirical analysis of how campaign finance distorts criminal trial court decision-making.  While our data are from Harris County (Houston), Texas — the nation’s third most populous county — we show that pay to play is probably endemic across that state. Indeed, similar problems likely affect millions of Americans, as trial judges who control indigent defense assignments in many other states—including California, Georgia, Maryland, Missouri, North Carolina, and Ohio, among others — accept attorney donations to fund their electoral campaigns.  Unless substantial reforms are made to address the corrosive influence of campaign finance on criminal defense, the Sixth Amendment’s right to counsel will continue to ring hollow for millions of indigent defendants.

The New York Times today has this article about this research under the headline "Campaign Funds for Judges Warp Criminal Justice, Study Finds; Judges in Harris County, Texas, were far more likely to appoint lawyers who had donated to their campaigns to represent poor criminal defendants."

June 2, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Senate Judiciary Committee about to start "Examining Best Practices for Incarceration and Detention During COVID-19"

At 10:00 am this morning, June 2, 2020, the Senate Judiciary Committee has scheduled this full committee meeting on "Examining Best Practices for Incarceration and Detention During COVID-19."  Here are the scheduled witnesses:

Panel I
Mr. Michael Carvajal
Director
Federal Bureau of Prisons
Washington , DC
 
Dr. Jeffry D. Allen, MD
Medical Director
Federal Bureau of Prisons
Washington , DC

Disappointingly, as of this writing, there is no written testimony linked from the Senate website from any of these witnesses. If any becomes available later, I will be sure to post it.

UPDATE: I am pleased to see that there is now linked written testimony for all the witnesses listed above.  Here is the written testimony for both BOP witnesses, and here are excerpts on "Current Status" and "Home Confinement":

The Bureau manages the health and treatment of approximately 149,000 inmates in BOP facilities and RRCs.  Over half of our institutions have no COVID-19 positive cases among inmates or staff.  Indeed, two-thirds of our positive cases are in just 7 of our 122 institutions nationwide.  As of June 1, 2020, across all facilities, there are 1,650 federal inmates who are currently COVID-19 positive based on test results.  There are also currently 171 Bureau staff who have confirmed positive test results for COVID-19 nationwide, with 445 staff recovered and returning to work.

In total, from March 1, 2020, the date of the beginning of the national emergency proclaimed by President Trump, until today, 5,323 inmates total have tested positive for COVID19 and to-date, 3,784 have recovered.  More than 80 percent of infected individuals have not become significantly ill.  The number of hospitalized inmates — those who became significantly ill — is currently only 83 in total.  And in fact, the number hospitalized is on a significant downward trajectory (see attached), suggesting that our attempts to mitigate the transmission of the virus is effective.  Regrettably, there have been 68 federal inmate deaths from COVID-19.

To-date, the Bureau’s overall infection rate is approximately 4%, including clinically-probable and suspect cases, and based on the total number of inmates in custody.  The BOP's death rate of those infected is approximately 1.1% and is slightly lower than the US rate of 1.3%.  The BOP's rate of hospitalization has continued to decline over time with only 83 inmates currently hospitalized and only 22 of those on ventilators....

As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences.  On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates.  The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic.  I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement.  This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks.  While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority.  The Attorney General has issued guidance as to which inmates should be considered for home confinement.  Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances.  Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.

It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider — as the Attorney General’s guidance emphasized — that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released.  Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community.  Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.

June 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, June 01, 2020

"Prosecutor-Driven 'Second Look' Policies Are Encouraging, But Not A Panacea"

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

This article explains how the dearth of executive clemency and parole has led to some prosecutors reducing terms of incarceration for particular defendants post-sentencing. California has passed the first law to encourage prosecutors to order “second look” hearings for prisoners they deem worthy.  Elsewhere, prosecutors have in rare circumstances renegotiated plea deals to reduce terms of incarceration.  Prosecutor-driven “second look” policies should be considered one of many tools that could help reduce the U.S. incarceration rate.  Such policies will thrive only in localities where reducing incarceration is politically palpable.  The “second look” paradigm is also unlikely to be viable in the federal context, due to skepticism from the Department of Justice.

June 1, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Senator Harris and Representative Jeffries write to AG Barr to express "concern about the process for transferring incarcerated individuals to home confinement"

As reported in this AP piece, "Democratic lawmakers are raising questions about the federal Bureau of Prisons’ release of high-profile inmates and are calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system."  Here is more from the press piece:

Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and Bureau of Prisons Director Michael Carvajal over the home confinement policies. They expressed concern that a number of high-profile inmates, including former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen, had been released despite not meeting all the criteria that the agency has set for inmates prioritized for home confinement.  “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons,” the lawmakers wrote.

They pointed to the case of Andrea Circle Bear, a 30-year-old pregnant inmate whose baby was delivered by cesarean section while she was on a ventilator after being hospitalized with coronavirus symptoms and who died in federal custody in late April.  They also pointed to the case of a 67-year-old man serving a sentence at FCI La Tuna, a low-security prison in Texas, who has advanced coronary disease and who was initially told he would be released to home confinement but later was told it was rescinded because he hadn’t served at least half of his sentence.

Prison advocates and congressional leaders have been pressing the Justice Department for weeks to release at-risk inmates ahead of a potential outbreak, arguing that the public health guidance to stay 6 feet (1.8 meters) away from other people is nearly impossible behind bars. And they’ve raised alarm about what they’ve described as mixed messages from the prison agency about the criteria for who can be released....

The Bureau of Prisons has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. The response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.

As of Monday, 5,234 inmates had tested positive for COVID-19 since late March; the Bureau of Prisons said 3,605 had recovered. At least 64 inmates have died. And even though officials have stressed infection and death rates inside prisons are lower compared with outside, a high number of inmates tested come back positive — signs that COVID-19 cases are left uncovered.

Separately, Sens. Elizabeth Warren and Cory Booker asked the Bureau of Prisons to immediately begin conducting “universal diagnostic testing” for all federal inmates and staff members, including those held at privately run facilities, and to publicly release daily data on the number of inmates and staff members who have been tested. “Widespread and continued diagnostic testing is crucial to controlling the COVID-19 pandemic,” they wrote. The lawmakers said the Bureau of Prisons has “not been forthcoming with specific testing protocols” and is not providing specific information about the testing capacity at federal prisons across the U.S.

The full three-page letter referenced in this article is available at this link, and it concludes with a number of questions that would be nice to see answered (e.g., "How many individuals has BOP recommended for transfer to home confinement since March 26, 2020?... Please provide a breakdown of those recommendations by age, gender, race, and crime of conviction.").

June 1, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

SCOTUS, voting 7-2, limits reach of AEDPA's limit on second habeas petitions in Bannister v. Davis

The Supreme Court handed down a number of opinions this morning, and habeas/criminal procedure fans — or civil procedure fans since habeas actions are technically civil actions — will be excited to see one of the group is Bannister v. Davis, No. 18–6943 (S. Ct. June 1, 2020) (available here).  The opinion in Bannister is a notable procedural win for habeas petitioners, and I am intrigued and a bit surprised the ruling came down 7-2 given how long the opinions took to be issued (the case had been argued in December 2019).  The opinion for the Court was authored by Justice Kagan, and it starts and ends this way:

A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction.  But he may not usually make a “second or successive habeas corpus application.” 28 U.S.C. §2244(b).  The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition.  We hold it does not.  A Rule 59(e) motion is instead part and parcel of the first habeas proceeding....

Our holding means that the Court of Appeals should not have dismissed Banister’s appeal as untimely.  Banister properly brought a Rule 59(e) motion in the District Court.  As noted earlier, the 30-day appeals clock runs from the disposition of such a motion, rather than from the initial entry of judgment.  See supra, at 3.  And Banister filed his notice of appeal within that time. The Fifth Circuit reached a contrary conclusion because it thought that Banister’s motion was really a second or successive habeas application, and so did not reset the appeals clock. For all the reasons we have given, that understanding of a Rule 59(e) motion is wrong. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Justice Alito pens a dissent that is joined by Justice Thomas.  This dissent, intriguingly, runs the same length as the opinion for the Court, and here are excerpts from how it starts and ends:

If Banister had labeled this motion what it was in substance — another habeas petition — it would have been summarily dismissed under 28 U. S. C. §2244(b)(1).  If he had labeled it a motion for relief from judgment under Federal Rule of Civil Procedure 60(b), it would also have been subject to dismissal under our decision in Gonzalez v. Crosby, 545 U.S. 524 (2005). Instead, he gave it a different label, styling it as a motion to alter the judgment under Rule 59(e), and the Court now holds this label makes all the difference.

The question in this case is whether a state prisoner can evade the federal habeas statute’s restrictions on second or successive habeas petitions by affixing a Rule 59(e) label. The answer follows from our decision in Gonzalez, and the answer is no.  If a Rule 59(e) motion asserts a habeas claim, the motion functions as a second or successive habeas petition and should be treated as such....

I would hold that a Rule 59(e) motion that constitutes a second or successive habeas petition is subject to §2244(b) and that such a motion does not toll the time to appeal.  I therefore conclude that the Fifth Circuit was correct to dismiss Banister’s untimely appeal.  Because the Court holds to the contrary, I respectfully dissent.

June 1, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, May 31, 2020

"Proposed Public Health and Public Safety Pathways for Criminal Justice System Responses to Covid-19"

The title of this post is the title of this effective short document produced by a number of organizations involved in both criminal justice administration and public health.  Here is how it gets started:

A wide array of criminal justice stakeholders have come together to call for a public health-oriented approach to the COVID-19 crisis. The key recommendations are as follows:

 1.  Release of people who are incarcerated, based on clear public health recommendations and release criteria, is a critical intervention to limit the spread of disease.

 2.  Limiting new admissions to closed correctional settings is an equally critical component of reducing disease transmission for the protection of our communities.

 3.  Violations of COVID-19-related directives and orders should be addressed with a public health approach, rather than with criminalization and law enforcement surveillance.

 4.  Innovations that promote integration of public health priorities into the justice system already exist and may help local jurisdictions in their responses, including specialty courts, evidence-based models of correctional health care, and dedicated re-entry services.

 5.  Connections among public health organizations, researchers, and criminal justice stakeholders are necessary to manage health crises in custodial settings and should endure beyond the COVID-19 pandemic.

May 31, 2020 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Despite a short work week, still another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

Another (too) busy work week for me meant that I needed this weekend to catch up on last week's  COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  As readers may recall, my last post with a list of recent grants (covering grants mostly from May 16 to 21) was quite lengthy.  Perhaps due in part of a shorter work-week, this listing is not quite as long, but it still represents lots of uplifting news for certain defendants and their loved ones during a time when I think we can all benefit from some positivity.  So:

United States v. Somerville, No. 2:12-CR-225-NR, 2020 WL 2781585 (WD Pa. May 29, 2020)

United States v. Chester, No. 6:17-CR-06151 EAW, 2020 WL 2771077 (WDNY May 29, 2020)

United States v. Acoff, No. 3:15cr157 (MPS), 2020 WL 2781798 (D Conn. May 29, 2020)

Harrell v. United States, No. 13-20198, 2020 WL 2768883 (ED Mich. May 28, 2020)

United States v. Gonzalez, No. 12-CR-326 (JMF), 2020 WL 2766048 (SDNY May 28, 2020)

United States v. Feucht, No. 11-CR-60025-MIDDLEBROOKS, 2020 WL 2781600 (SD Fla. May 28, 2020)

United States v. Silkeutsabay, No. 2:13-CR-0140-TOR-3, 2020 WL 2747401 (ED Wash. May 27, 2020)

United States v. Whyte, No.  4:12cr00021-002, 2020 WL 2754761 (WD Va. May 27, 2020) 

United States v. Body, No. 18 CR 503-1, 2020 WL 2745972 (ND Ill. May 27, 2020)

United States v. Jackson, No. 5:02-cr-30020, 2020 WL 2735724 (WD Va. May 26, 2020)

United States v. Morris, No. 12-154 (BAH), 2020 WL 2735651 (DDC May 24, 2020)

Nearly a dozen grants in a short week is still remarkable, and this group can be rounded up to an even dozen with McCoy v. United States, No. 2:03-cr-197, 2020 WL 2738225 (ED Va. May 26, 2020).  McCoy grants a sentence reduction, without any mention of COVID, to redress an old excessive sentence imposed on a young offender and inflated by stacking mandatory 924(c) counts.  Here is the closing section from McCoy court: "Petitioner was sentenced at just 20 years old to a mandatory 421 month term for crimes that he would face an advisory guidelines range of 205–214 months if sentenced today.... Petitioner's relative youth at the time of the sentence, the overall length of the sentence, the disparity between his sentence and those sentenced for similar crimes after the FIRST STEP Act, and his rehabilitative efforts form an extraordinary and compelling basis for relief.  Accordingly, .... Petitioner's total sentence is reduced to a cumulative term of 205 months."

As I have mentioned before, a lot of late week rulings do not appear on Westlaw right away, so there might still be some additional late May grants that could show up on the service later this week.  Moreover, as I have mentioned in a number of prior posts, I am quite certain that these Westlaw listings do not represent all sentence reductions being granted by federal courts these days.  The data in the Marshall Project article flagged here have led me to believe that Westlaw is picking up only about half or even less of all federal sentence reduction grants.

Prior recent related posts since lockdowns:

May 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 30, 2020

"The Case for a Federal Criminal Court System (and Sentencing Reform)"

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

This article proposes the establishment of a federal criminal court system, comprised of separate criminal trial courts, circuit courts of appeal and a National Court of Criminal Appeals, with discretionary review by the Supreme Court.  Compared to the 1970s, when there were many fewer cases per judge than there are today, federal criminal adjudications take twice as long, magistrates take on much greater adjudicatory load, and appellate courts much more frequently forego oral arguments, rely on legal staff, and issue unpublished opinions . A specialized judiciary would significantly enhance trial court efficiency and appellate court capacity to produce quality decisions.  Furthermore, because there would be a superior appellate court devoted to ensuring uniform nationwide rules, such a system could more easily resolve doctrinal conflict on criminal justice issues than the current system, which relies on a Supreme Court that is failing to address most of the conflicts among the circuits. 

Perhaps the most important potential benefit of a division of the civil and criminal systems, however, is that the civil system would function more efficiently once criminal cases, which have docket priority at the trial court level, are diverted.  This article also proposes that this separate federal criminal court system return to a more indeterminate sentencing regime that would shift much of the heavy lifting regarding criminal dispositions from judges to expert parole boards.  This proposal would also lessen the appellate workload and ensure that trial judges in a specialized criminal court are not debilitated by the psychologically demanding analysis that currently accompanies sentencing.

May 30, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, May 29, 2020

"Not Letting Felons Vote Damages Democracy for All Citizens"

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

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

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

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

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

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

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

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

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

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

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

May 29, 2020 in Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Wednesday, May 27, 2020

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

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

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

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

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

Prior related posts:

May 27, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (5)

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

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

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

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

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

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

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

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

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

Tuesday, May 26, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full SCOTUS order is available at this link.

Prior related posts:

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

Saturday, May 23, 2020

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

Prior recent related posts since lockdowns:

May 23, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

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

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

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

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

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

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

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

About

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

Contest Objective and Deliverable

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

Contest Timeline and Awards

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

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

Friday, May 22, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 21, 2020

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

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

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

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

Prior related recent post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior posts focused on these defendants:

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

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

Wednesday, May 20, 2020

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

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

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

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

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

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

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

"The Shadow Bargainers"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Monday, May 18, 2020

An overview of federal compassionate release issues during this pandemic

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

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

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

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

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

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

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

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

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

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

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

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

Reviewing the emerging jurisprudence around FIRST STEP Act resentencings

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

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

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

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

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

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

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

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

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

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

Sunday, May 17, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts since lockdowns:

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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